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Matt Jones
Matt Jones, Solicitor
Category: Law
Satisfied Customers: 671
Experience:  I am a qualified and practising Solicitor with over 7 years post qualification experience
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Prescribed information as at 24.11.11

Resolved Question:

I am landlord. Tenancy commenced 24th November 2011. Can you tell me the regulations that applied to providing Prescribed Information at that time.  I want to reclaim part of the tenants deposit, but they say they never received Prescribed Information, and if we did send it, it was not signed, and no prescribed information was issued when it changed to periodic tenancy a year later. The deposit was protected with DPS custodial scheme and details provided to tenants

Submitted: 2 years ago.
Category: Law
Expert:  Matt Jones replied 2 years ago.
Matt Jones :

HI I will try and help

Matt Jones :

did you actually serve the Prescribed info (by post etc)

Customer:

It was hand delivered to the tenants flat - posted into the letterbox within a bank of letterboxes outside their small block of flats

Customer:

I should add that the tenancy was renewed once and a year later became periodic but no new prescribed information was issued at those times. Tenancy has now ended

Matt Jones :

Thanks

Matt Jones :

from 2007 it has been the case that prescribed information must be given to the tenant. There is no legal requirement for the Tenants to sign to confirm receipt. You have hand delivered which is good evidence that they were correctly served.

Matt Jones :

There has been a recent case in the Court of appeal where various issue were discussed in relation to when the Prescribed information should be served.

Matt Jones :

The question of them being served during a periodic tenancy when they had already been served during a fixed term was not explicitly dealt with.

Matt Jones :

My view is that this would be a nonsense and lead to un-warranted paperwork, however i can see why a landlord by (for belt and braces sake) might do this.

Matt Jones :

However in your case as the tenancy has ended I do not think it is fatal to your potential claim for part of the deposit.

Matt Jones :

You just need to make it in the usual way though the DPS. If the tenant objected then you follow the adjudication procedure.

Matt Jones :

I hope this helps. Do ask any follow up questions.

Customer:

It is with the dps and we have asked for it to go to adjudication. However, the status with dps is "awaiting tenant response". They have appointed a solicitor who called me to say he will take it to court and will win on the technicalities of 1) not obtaining the tenants signature on the original prescribed information, and 2) not issued prescribed information when renewing the tenancy and when it became periodic. He more or less blackmailed me into agreeing to release the deposit to the tenants, in which case he would not take any further action. He intimated that if we do not agree to release the deposit it will go to court, who will find in their favour and we could be force to pay back the deposit plus up to 3 times the deposit; so we wonder if it will be better just to agree to pay back the deposit rather than risk the higher penalty.

Matt Jones :

how much is the deposit and how much are you asking for towards the repair?

Matt Jones :

also do you have evidence of the state of the property before the tenant moved in and when they moved out, both agree with the Tenants?

Customer:

The deposit is just over £2,000, and we are claiming about £1900 of that. The solicitor said in the conversation that they do not dispute that - they are just trying to get it back on the grounds of legal technicalities

Customer:

We had a full professional inventory and check in, with photos, and same at check out

Customer:

Hi. I've got to go now, and will be back in the morning. You have been really helpful so far, so I look forward to seeing your further comments tomorrow. Goodnight!!

Matt Jones :

ok no problem, I will post further and we'll pick up again tommorow

Matt Jones :

I am not sure I agree with the Solicitors interpretation of the rules in relation to the signature on the Prescribed information. The Housing (Tenancy Deposit (Prescribed informaion) Order 2007 states (among other things):-

Matt Jones :

(vii)confirmation (in the form of a certificate signed by the landlord) that—


(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and


(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

Matt Jones :

so you only have to have signed the forms yourself to confirm that you have given the tenant the opportunity to sign, and arguably by delivering the information you have given that opportunity.

Matt Jones :

as to the re-issue as I said I am not convinced that this is definitely the approach the Court would take. The Superstrike v Rodrigues case did not specifically focus on this issue.

Matt Jones :

However there is always a potential risk of a case going against you. I am not happy that a Solicitor has called someone up and by the sound of it essentially used legal bullying tactics. The case law surrounding tenancy deposit is, unfortunately constantly changing and the Courts are not helping with a sometime confused outlook, and so there is a risk and so I suppose it is a matter for you to decide whether the tenants are "all talk" or if they will see if through and sue you

Matt Jones :

There is however a risk to the tenants that they may lose the case and so it may be the case, taking a practical outlook, to negotiate a smaller settlement from out of the deposit, to coin a phrase, discretion being the better part of valor

Matt Jones :

look forward to hearing from you

Customer:

I am not sure whether to just agree to their terms, or to risk it and go to court, in which case the judge could find in their favour which would cost me a lot more - although as you say that the laws surrounding this are confusing, reading the internet it seems as though there have been a few recent cases where the court found the landlord guilty of not issuing the prescribed information correctly. It is a good idea to offer a smaller settlement. The problem i have is that their solicitor is very aggressive - he even wanted an answer there and then on the phone, but I insisted of letting me have a few days to get back to him - today is he deadline he set. He said they have deposited £1000 in his account to prove they are serious about proceeding.

Matt Jones :

HI there, thanks

Matt Jones :

sorry been a bit buy this morn

Matt Jones :

it is by no means certain that is true, however there is no definitive guidance by the Courts that indicate that in your case the prescribed information has to be given again. I think the Courts would have some sympathy for you as, buy the sound of it, you have lodged the deposit in time and provided the prescribed information in time (albeit they will argue you didn't). The in the Superstrike case I have mentioned above the Landlord did neither of these things, and held onto the deposit. it is true that there is are a couple of County Court decisions that have dealt with the question and it is true they have gone against the Landlords, but these are not binding on other courts and the decision could be held in your favour, particularly as the government is legislating to clear this area up and not require the prescribed information to be re-served. The judge could be persuaded for you on this basis

Matt Jones :

I suppose it is a cost benefit analysis for you. Is it worth it to you to fight the case, or simply walk away without having the case pending and renovate the house for less than the £1900?

Matt Jones :

Also did the Solicitor advise you to seek independent legal advice?

Customer:

thanks for all the advice

Customer:

In answer to your last question - no he didn't. He wasn't even going to give me the opportunity to investigate the file and get back to him - he demanded an answer there and then, so when I said I have to check the file, he said he would need to know by the next day, (which would have been Tuesday). I have stretched it to today because as you know I am still investigating how to reply to him

Matt Jones :

Our governing body, the Solicitors Regulation Authority, indicate that as part of our code of conduct we do not seek to take advantage of other because of our status/legal qualifications. The minimum we should do is advise someone to take independent legal advice. Think whatever you decide you may consider a complaint to the SRA.

Matt Jones :

If I have been of assistance please click to leave me positive feedback so I can be pad for my time. the question wont close and if you wish to ask further information at a later point relating to this matter you may.

Customer:

how do you suggest I reply to him at this time

Matt Jones :

I depends on whether you decide to call their bluff. The issue is not 100% decided either way and so there is risk in going to Court for either party. You have three options: (1) withdraw and allow them to have the deposit (2) argue the case and defend the matter if it comes before the court (3) try and negotiate a settlement with them for a reduce value. If you decide on option (1) or (3) make sure you put this in writing. Make sure also that, if it is (1) you agree to release the deposit on the basis that there are no further claims by either party, to save them agreeing and then suing you anyway. If (3) then mark the reduced offer "Without Prejudice" that way the other side cant show the letter to the Court during the trial, but if they don't win, or win but are awarded less than your offer you will be able to show the court at the end recover any Court or legal fees you incur from the date of the letter.

Matt Jones :

I wouldn't bring up the Solicitors conduct at this stage, wait until the issue if finalised as it may just complicate matters

Matt Jones, Solicitor
Category: Law
Satisfied Customers: 671
Experience: I am a qualified and practising Solicitor with over 7 years post qualification experience
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