News Article

"In May, you MUST give your Tenants the Renters Rights Information Sheet or

YOU RISK  - £7,000 FINE  PER TENANT PER PROPERTY."READ MORE

Service of Prescribed Information in Periodic Tenancy now upheld in Court

23rd Jun 2014

 
The article below has now been superceded by more recent case Periodic Notice Defence Gardner v McCusker in that case the Judge determined the Landlord application for possession was invalid and set aside [struck out]
  • The Ruling deems when a tenancy became a periodic the Landlord MUST have reissued prescribed information. The courts ordered possession claim invalid and Landlord ordered to pay compensation
  • Before you worry too much about the ruling Gardner v McCusker above  – Using such defence as this shall be eradicated when the derugulation bill comes into effect later this year
 
THE ARTICLE BELOW DEMONSTRATES WHERE AN APPEAL IS LODGED ONE SHOULD ASSESS VIABILITY BEFORE DEFENDING AND INCURRING LEGAL COSTS AND EXPOSURE TO DEFENDANT COSTS
 
________      The original article below superceded by new case     ____
 
 
A PIMS member secured a Possession Order using the Section 21 Process. Subsequently they have received notification via the court that the Tenant's Barrister [the Tenant is in receipt of a legal aid funding certificate] is appealing and requesting the possession order be set aside. Having had sight of the 18 page defence a key component "is that the landlord failed to reissue the prescribed information when the Tenancy became a periodic". [see Deposit Information to be supplied to the tenant ] In addition they are seeking compensation of three times the deposit.
 
  • It is accepted the member provided deposit prescribed information with previous Tenancy Agreements but not when becoming a periodic Tenancy.
  •  The extract from the Tenant Defence is available to members and can be viewed at the bottom of appeal letter
  • Using such defence as this shall be eradicated when the derugulation bill comes into effect later this year
 

Key Parts of their REQUEST TO SET ASIDE THE POSSESSION ORDER

  • The Judgement in Superstrike V Rodrigues a Court of Appeal Ruling June 2013 defines a Periodic Tenancy Agreement as a New Agreement [contract] not a continuance.   
    • 213(5) of the 2004 Housing Act as amended by the 2011 Localism Act states - A Landlord who has received such a tenancy deposit must give the Tenant and any relevant person such information relating to [the deposit]

       

      • Information is further defined by 213 (6) The information required by subsection (5 above) must be given to the Tenant and any relevant person— (a)in the prescribed form or in a form substantially to the same effect, and (b)within the period of 30 days beginning with the date on which the deposit is received by the Landlord.[so the deposit is deemed as a new deposit having been received by way that it became a periodic tenancy [contract]  
       

    We have previously published a warning on the PIMS site wWw.pims.co.uk/reservice_prescribed_Information

     

    Their position is the order be set aside based on this

     
  • Prevention of service of Notice under Section 21 of the Housing Act 1988 as revised by localism Act.

    No Section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.This basically means the prescribed information leaflets etc provided to tenant/person who paid the deposit.

     

    • As said, we do believe from a legal prospective there needs to be clarity on this – as is the localism Act and Superstrike appear to support the defence position [even though it is nonsense there is an argument to be heard, a consideration is as this case is funded by legal aid the exposure to legal fees is disproportionate to gain - PIMS and the member are happy with our plan B and C [we always have a solution].
    • The Implemenation of the pending Deregulation Bill 2014 may remove such nonsense for the objective of the new  bill to make provision for the reduction of burdens resulting from legislation for businesses or other organisations or for individuals; make provision for the repeal of legislation which no longer has practical use; make provision about the exercise of regulatory functions; and for connected purposes

     

     

    •  Whilst the Judge can rule in our member's favour we believe the Tenant's Barrister would appeal to the court of appeal then again to the supreme court 

     

     

    • Should our member wins the case they would not recover costs should they lose then costs become substantial - [the member in question is a well known multimillion pounds company and able to finance this case - but what would they win - we are taking the view risk reward and is our plan B robust enough - yes

     

     

    PIMS PREVIOUS WARNING REMAINS AS IS

      

    Due to the case law Superstrike V Rodrigues a Court of Appeal Ruling June 2013 there will remain ambiguity as to whether previously served prescribed information remains valid once a tenancy has become a Periodic Tenancy. Should it be upheld/valid (case strongly implies) previous Prescribed information maybe void [which would seem harsh and contrary of deposit legislation] then the Section 21 could be argued to be invalid and possession request denied or Appealed and possession order set aside. Should you have a similar defence filed against a possession claim contact your member's help line.

    • There remains ambiguity as to whether previously served prescribed information remains valid once a tenancy becomes Periodic
    •  To assist Members we have produced a draft letter to grant request for setting aside an application
    • Using such defence as this shall be eradicated when the derugulation bill comes into effect later this year

     

     

     
     
     
     


News Archive »


Feedback includes"invaluable service", "Excellent", "A brilliant Website", "worthwhile joining" , "friendly and knowledgeable", "incredibly helpful", "outstanding" Read Reviews

 

 

"In May, you MUST give your Tenants the Renters Rights Information Sheet or

YOU RISK  - £7,000 FINE  PER TENANT PER PROPERTY."READ MORE