Depositions about deposits

Evidencing compliance with prerequisites for a claim under Section 21 can be difficult. It is important to have documentary evidence in support.

The landlord in this case granted an AST that commenced on 21/12/2009. A deposit was paid in connection with the tenancy and was protected on 05/01/2010, with Prescribed Information (“PI”) given to the Tenant on 21/12/2009. The PI was contained within the AST and the deposit was protected with ‘MyDeposits’. The managing agent confirmed the deposit ‘leaflet for tenants’ was also provided, but a copy was not retained on their file.

On 02/09/2011, the deposit was transferred to and protected with the Deposit Protection Service (“DPS”). A copy of the initial deposit protection certificate was not retained; therefore, the landlord relied on the latter DPS certificate as evidence that the deposit was/remained protected.

The tenant stated they were seeking assistance from the local authority and wished to be rehoused and did not intend to defend a claim for possession whereby the landlord commenced proceedings.

However, local authorities have their prevention teams legally trained to investigate the validity of Section 21 notices and proceedings. If a homeless applicant has a defence to a Section 21 claim, it must be advanced. If a tenant chooses not to advance a defence, often in the hope of securing social housing, they are likely to be found intentionally homeless. The definition of “intentionally homeless” is “doing something, or failing to do something, that results in homelessness”. The courts have held that failing to advance a valid defence that would have meant they kept their tenancy is failing to do something which results in their homelessness. The authority is then entitled to find them intentionally homeless and offer no housing assistance.

Due to the risk of being deemed “intentionally homeless”, it means there is greater scrutiny of Section 21 applications than perhaps there once was. In addition, with the pending and long awaited Renters Reform Bill, and the proposed abolition of Section 21, we anticipate these claims will be more closely examined in the future.

After proceedings were issued, the tenant filed a defence that denied having received any PI following the transfer of funds to the DPS and opposed the landlord’s claim under Section 21 of the Housing Act 1988 on the grounds of non-compliance with the deposit protection rules.

The landlord was unable to provide evidence that the PI had been served following the transfer to DPS in 2011 but did have evidence that a renewal AST (including the requisite PI) was drafted and served on the tenant in January 2020. Unfortunately, the renewal AST was never agreed/signed and neither the landlord, nor their agent, retained a copy of the terms and conditions that were provided. As such, the only evidence of compliance was a witness statement confirming the same. Without copies of the documents given or contemporaneous files notes, it could not be said that the prospects of successfully proving the claim were sufficient and the claim was discontinued. The remedy available to the landlord was to return the deposit in full, then serve a new Section 21 and begin the process again.

Here at Legal for Lettings, we have experts to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property. If you want to see how we can help, get in touch at contact@legalforlettings.co.uk.