Section 21 defences Advisers’ checklist

Pre- April From Page: Potential defence: April 2007- 1st 2007* 2015 October 2015** The s.21 doesn’t give at least 2 months’ 1 ✓ ✓ ✓ notice. The notice was not in the prescribed form. 1 ✓ The tenancy was periodic from the start 2 ✓ ✓ and the notice does not expire on the last day of a period of the tenancy. The notice hadn’t expired when the claim 2 ✓ ✓ ✓ was issued. The notice was served within the first four 2 ✓ months of the tenancy. The notice seeks to end the tenancy within 2 ✓ ✓ ✓ the first six months of the initial tenancy. The notice expires within the fixed term. 3 ✓ ✓ ✓ When proceedings were issued the notice 3 ✓ had expired more than six months previously (or, if the notice must give more than two months’, notice, more than four months previously). There is an Equality Act defence. 4 ✓ ✓ ✓ There is an estoppel defence. 4 ✓ ✓ ✓ The landlord had not served before 4 ✓ commencement of the tenancy: - Gas safety certificate; - Energy performance certificate; The landlord has not served the most 6 ✓ recent ‘How to rent’ guide when the tenancy was granted or a new fixed term agreed. This is a ‘revenge eviction’ within the 7 ✓ meaning of the Deregulation Act 2015. The property requires HMO/selective 7 ✓ ✓ ✓ scheme licensing and was not licenced or

temporarily exempt, and no application was underway, when the s.21 was served. At the time of service there was a deposit 8 ✓ ✓ ✓ that was not held in an authorised scheme. The landlord had not protected the deposit 8 ✓ and, before the s.21 was served, had neither (i) returned the deposit; nor (ii) protected it late. The tenancy became periodic after 6th April 8 ✓ 2007 and the landlord had neither protected the deposit by 23rd June 2015, nor returned it. The landlord failed to protect the 8 ✓ ✓ deposit/comply with the initial requirements within 30 days of receiving it, and had not returned it when the s.21 was served. The landlord protected the deposit more 9 ✓ ✓ than 30 days after receiving it, and there has been no new tenancy since, and the deposit has not been returned. The landlord had not served the ‘prescribed 9 ✓ ✓ ✓ information’ relating to the deposit when the s.21 was served, including: - Scheme administrator’s full contact details. - Any leaflet the administrator uses. - Payment/repayment procedure. - Procedure where either party is not contactable. - Dispute procedure. - Dispute resolution facilities. - Deposit amount. - Tenancy address. - Landlord’s full contact details. - Tenant’s full contact details. - Relevant person’s details. - When the landlord may retain the deposit. - Signed certificate of accuracy. The ‘prescribed information’ had not been 12 ✓ ✓ ✓ served on a ‘relevant person’ (who paid the deposit on behalf of the tenant). The landlord failed to properly return the 12 ✓ ✓ deposit. The landlord returned the deposit, but not 13 ✓ ✓ to the ‘relevant person’.

The landlord had returned the deposit but 13 ✓ ✓ ✓ checked the wrong box/not made that clear in the claim form. The claim has been brought by the wrong 13 ✓ ✓ ✓ claimant. The client’s instructions don’t exactly match 14 ✓ ✓ ✓ the claim form. The statement of truth is not signed by the 14 ✓ ✓ ✓ landlord or their solicitor.

* There is no substantive difference between pre-2007 and post-2007 tenancies, but the date is relevant to the deposit protection rules: this column applies where a deposit was received before 4th April 2007 and there has been no subsequent replacement tenancy since then.

** The post-2015 defences apply to new tenancies granted after 1st October 2015 and will apply to all tenancies existing on 1st October 2018 but (until October 2018) they do not apply to statutory periodic tenancies that have arisen after a periodic or fixed-term tenancy that was originally granted before 1st October 2015.

Disclaimer: this document is intended as a guide to the issues that can arise in section 21 possession claims, but it should not be taken to be authoritative and it is not legal advice. If you are at risk of losing your home you should seek specialist legal advice (legal aid is still available for many tenants). The guide is believed to be accurate at May 2018.

Section 21 defences Advisers’ guide

Introduction The frequent and complicated amendments to the legislation, and the litigation that inevitably follows, are fertile ground for technical defences to possession claims. Identifying a technical defence will often mean, at the very least, that the case will be listed for a hearing, which secures valuable time for the tenant even if the claim eventually succeeds. In this guide we hope to compile and explain the technical defences currently available (although there are bound to be others).

When faced with a tribunal or landlord who derides a defence as ‘technical’ there are a number of arguments to bear in mind: - In Section 21 claims the only defences available to most tenants are technical. Parliament has obliged landlords to meet stringent conditions when depriving a tenant of their home with ‘no fault’ on the tenant’s part. - Technical defences are in the spirit of the legislation. The Deregulation Act regime has created more technicalities, not fewer, and the did the same. - The Court of Appeal has described Section 21 as: “a robust machinery. It depends upon district judges rigorously considering the documents which have been filed. Some replies may be little more than a plea, however genuine, for mercy. But if, on the face of the reply, a matter has been raised which, if true, might arguably raise a defence; or if the documents filed by the claimant might arguably disclose a defect in his claim, then the district judge must necessarily be ‘not satisfied’ within the meaning of [the rules]” (Manel v Memon (2001) 33 HLR 24 – quoted in the commentary to CPR 55.16 in the White Book).

The notice All s.21 notices must give at least two calendar months’ notice from the date of receipt.

The Deregulation Act brought in a prescribed form of s.21 notice (a copy is at the end of this guide). Any differences between the prescribed form and the notice served on the tenant should be brought to the court’s attention. However, as with all statutory notices,

1 the court might accept a section 21 notice that is in a form substantially to the same effect as the prescribed form (see, for example, Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034; or Tadema Holdings v Ferguson (2000) 32 HLR 866, which concerned notices under s.13 of the ). It is worth looking closely at the notice because the original statutory instrument (the Assured Shorthold Tenancy Notices and Prescribed Requirements () Regulation 2015, S.I. 2015/1646) prescribed a form that had errors in it, and some landlords might use that form by mistake. For tenancies that were granted before 1st October 2015 there is no prescribed form: the notice must be in writing and meet the straightforward requirements of s.21(4)(b) or s.21(1)(b).

Section 21(4ZA) has abolished the old requirement that notices had to expire on the last day of a period of a tenancy (or contain a proviso that it expires ‘at the end of the period of your tenancy which will end next after the expiration of two months from the service upon you of this notice’). However, that requirement still applies to contractual periodic tenancies that were granted before 1st October 2015 (Section 41(2) of the Deregulation Act 2015).

The notice must have expired when the claim was issued. It is a straightforward requirement that the tenant must have two full months’ notice before the landlord is entitled to start proceedings (Lower Street Properties Ltd v Jones (1996) HLR 887).

For many years it has been common practice for landlords to serve notices at the start of the tenancy. That is no longer possible for post-2015 tenancies: s.21(4B) precludes service of a notice within the first four months of a tenancy. However, that restriction does not apply to tenancies that have become statutory periodic tenancies, or to ‘replacement tenancies’ (defined in s.21(7): tenancies where the landlord and tenant are the same as under the previous tenancy, and the premises are also the same or substantially the same). What that means in effect is that this ‘first four months rule’ only applies to the first tenancy: if a tenant remains in occupation after the first fixed term has expired, s.21(4A) does not apply.

The law is designed to ensure that new ASTs run for a minimum period of six months. For post-2015 tenancies that takes effect through the s.21(4B) (above). For older tenancies, s.21(5) prohibits the court from making an order that takes effect any earlier

2 than six months after the start of an initial tenancy. This is not a defence per se because there is nothing necessarily wrong with a s.21 that expires within six months of an original tenancy, but it is important to ensure that the order for possession is dated correctly and (if it is not) apply to the court to set it aside and/or vary the date.

The section 21 notice cannot expire during the fixed term of a tenancy – section 21 obliges the court to make an order on the ‘expiry or termination’ of an AST (Gloucestershire HA v Phelps May 2003 Legal Action 35, Gloucester County Court. Note, however, that many ASTs have ‘break clauses’ – effectively a 12-month tenancy with a break clause is really a six-month fixed term tenancy dressed up as a 12-month one.

One of the more useful Deregulation Act provisions is the ‘use it or lose it’ rule for s.21 notices. In the past (and for tenancies granted before 1st October 2015) there is no expiry date for a notice. However, for new tenancies (and all tenancies in existence on 1st October 2018), s.21(4D) provides that: “Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4)”.

This appears to mean that a landlord has to start the claim within six calendar months of service of the notice. However, there is a discrepancy between the statute and the prescribed s.21 notice. The notice says that it is “valid for six months only from the date of issue” – but when is a s.21 issued? When it is sent by the landlord or when it is received by the tenant? CPR 7.2(2) provides that “A claim form is issued on the date entered on the form by the court” i.e. a court ‘issues’ a claim before it is served on a Defendant. On that basis, could a tenant argue that time runs from the date when the landlord dates the notice, contrary to the wording of the statute?

Sub-section 4E (referred to in 4D above) relates to periodic tenancies which have a notice period longer than two months. In those cases the limitation period is reduced to four calendar months from the giving/issuing of a notice.

3 Substantive defences This guide doesn’t deal with substantive defences but advisers should, of course, consider any argument that possession is being sought because of something arising in consequence of the tenant’s disability, that the eviction is not a proportionate means of achieving a legitimate aim and that the landlord has not done all that can be reasonably expected of her/him to accommodate the consequences of the tenant’s disability. It is clear from Aster Communities v Akerman-Livingstone [2015] UKSC 15 that the issue of whether there is an Equality Act argument, when raised by the tenant, should be considered summarily, but where the court considers that the defence is seriously arguable the claim should not usually be considered summarily.

Similarly, it is worth reading the tenancy agreement carefully. While Section 21 gives the landlord a statutory right to possession, the wording of the tenancy agreement might estop the landlord from relying on it if – for example – it explicitly sets out the circumstances in which the landlord will seek possession. Such wording is more likely to be found in social landlords’ tenancy agreements (now that social landlords can and do use ASTs) but there is always a chance that a private landlord might have adopted an agreement that a reputable social housing provider has published online.

The ‘prescribed requirements’ – sections 21A and 21B The defences relating to gas safety certificates and energy performance certificates are potentially very useful because they might be impossible for the landlord to rectify if they have failed to comply. The legislation is unclear, and is worth setting out. Section 21A: “(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement”.

Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 then provide that: “(1) Subject to paragraph (2), the requirements prescribed 1 for the purposes of section 21A of the Act are the requirements contained in— (a) regulation 6(5) of the Energy Performance of Buildings (England and ) Regulations 2012 (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and

4 (b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate). (2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply”.

The EPC requirement is that: “(2) The relevant person shall make available free of charge a valid energy performance certificate to any prospective buyer or tenant— (a) at the earliest opportunity; and (b) in any event no later than whichever is the earlier of— (i) in the case of a person who requests information about the building, the time at which the relevant person first makes available any information in writing about the building to the person; or (ii) in the case of a person who makes a request to view the building, the time at which the person views the building”.

The gas safety requirement is that: “(6) Notwithstanding paragraph (5) above, every landlord shall ensure that— (a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check [N.B. the 28-day deadline does not apply to s.21A]; and (b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises”.

When is the landlord in breach of the requirements? Arguably, in the case of the EPC, s/he is in continuing breach from when s/he has failed to make it available at the earliest

5 opportunity, or when the tenant viewed the building. Given that the S.I. refers to ‘prospective’ tenants, there is also an argument that the EPC must be served before the tenancy commences. The legislation doesn’t set out how the landlord could correct a failure to serve the EPC if they’ve either failed to do so at the earliest opportunity, or when the tenant viewed the building, or since the tenant ceased to be ‘prospective’, so there is an argument that the breach is irredeemable.

The argument is even more straightforward in respect of the gas safety certificate: it must be provided before the tenant occupies the property. There are two useful County Court cases to that effect (Caridon Property Ltd v Monty Shoolz (County Court at Central London (HHJ Luba QC) 2nd February 2018) and Assured Property Services Ltd v Ooo (County Court at Edmonton, 30 June 2017 (Legal Action January 2018) If that analysis is right the tenant has, in effect, an .

The legislation is very unclear as to whether the EPC requirement applies to HMOs. The EPC regulations define ‘building unit’ as a section, floor or apartment designed to used separately, and a tenant of an HMO occupies a room rather than the whole ‘separate’ HMO.

Note that – as the legislation currently stands – even after October 2018 landlords might not have to comply with the EPC and GSC requirements for pre-2015 tenancies or periodic tenancies that followed a tenancy that started before October 2015 (see ‘Nearly Legal’ Errata – AST regulations and non-existent requirements (22/03/2018).

Section 21B obliges the landlord to serve ‘How to rent: the checklist for renting in England’. There is no time limit on compliance, but the landlord cannot serve a notice while s/he is in breach. The guide may only be served by email if the tenant has notified the landlord/agent that s/he is content to accept service of notices and other documents by email. It seems quite unusual for landlords/agents to ask tenants whether they will accept service of notices by email (and it would probably need to be quite explicit – see CPR 6APD 4.1) so it is worth checking the tenancy documents carefully. Otherwise it must be served in hard copy. There is no need to serve a new guide for each replacement tenancy unless a new version has come into force since the last tenancy commenced. However, if a new tenancy has been granted – or a new fixed term agreed – since 1st October 2015,

6 the guide must have been served at some point (the newest version was published on 17th January 2018).

Retaliatory eviction No section 21 notice may be served within six months of the local authority serving an improvement notice or emergency remedial action notice under the Hazards Health and Safety Rating System.

In addition, where a tenant has complained about conditions in the property in writing (of any kind) and has not received an adequate response from the landlord within 14 days, a section 21 notice served after that complaint would be (or would become) invalid if the local authority served an improvement notice or emergency remedial notice at some point between the complaint and the order for possession. It is, however, very rare for local authorities to take enforcement action under the HHSRS scheme.

HMO licensing A property will probably be an HMO subject to mandatory licensing if it is at least three stories’ high, and at least five unrelated people live there as at least two separate households. Some areas are subject to additional or selective licensing. Section 75 of the Housing Act 2004 prevents service of a Section 21 notice where the property is an ‘unlicensed HMO’: i.e. not licensed when it is required to be, and not temporarily exempt. A landlord may serve a notice if s/he had applied for the license when the notice was served (unless the application has been withdrawn).

Many local authorities publish registers of HMOs, which can be a good starting point. Local authorities should also publish any selective or additional HMO licensing requirements.

Even where an HMO is licensed (or a license has been applied for) check the claim form carefully – it specifically asks whether the property is an HMO, and some landlords might be tempted to tick the wrong box.

7 Tenancy deposits The tenancy deposit regulations – introduced by the 2004 Act – has become complex and confusing over the past 10 years.

The first point to note – which is applicable to all tenancy deposits – is that a s.21 notice will not be valid if a landlord had received a deposit in relation to an AST and had not protected it in an authorised scheme and/or complied with the initial requirements when the notice was served, and the deposit had not been returned.

Where a landlord has breached the deposit protection regulations advisers should consider making a Part 20 claim as part of the defence, and applying for default judgment if it is not defended. In Wood v Arkley, County Court at Bradford, 15th March 2018 the tenant successfully argued that the tenant’s default judgment on the penalty claim had also determined the possession claim in the tenant’s favour.

Pre-2007 deposits: Where a deposit was received before 4th April 2007, and the tenancy became periodic before that date, and the landlord had not protected it before that date, it is open to the landlord to protect the deposit and comply with the initial requirements late. The Court of Appeal’s decision in Charalambous v Ng [2014] EWCA Civ 1604 (the effect of which was confirmed by amendments to the 2004 Act under s.31 of the Deregulation Act) applies: notwithstanding any penalty claim, the deposit can be protected at any point for the purposes of serving a s.21 notice.

Where a deposit was received before 4th April 2007 and the tenancy became periodic after that date, Parliament gave landlords until 23rd June 2015 to protect the deposit and serve the prescribed information (s.215A of the Housing Act 2004). If the deposit hadn’t been protected by that date, and the landlord had not returned it, the notice will be invalid.

Post-2007: Since the 2004 Act came into force landlords have been obliged to protect the deposit in an authorised scheme within 30 days of receiving it, and to comply with the initial requirements of the scheme provider. The landlord must also ensure that the deposit

8 continues to be protected. If the landlord has failed to do so then – unless the deposit is returned in full (less any agreed deductions) – any section 21 notice will be invalid.

If the landlord protected the deposit late, that will only count (for the purposes of serving a s.21 notice) where a replacement tenancy has arisen since the deposit was protected (s.215B of the 2004 Act).

It is also open to a landlord who failed to comply with the initial requirement/protect the deposit within 30 days to protect the deposit within the first 30 days of the commencement of a replacement tenancy.

The Deregulation Act repealed the Court of Appeal’s judgment in Superstrike v Rodriguez [2013] EWCA Civ 666 (that deposits had to be re-protected when a new tenancy arose).

Prescribed information: The full list, as set out in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 is as follows: (a) the name, address, telephone number, e-mail address and any fax number of the scheme administrator of the authorised tenancy deposit scheme applying to the deposit; (b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act; (c) the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy (“the tenancy”); (d) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy; (e) the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit; (f) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and

9 (g) the following information in connection with the tenancy in respect of which the deposit has been paid— (i) the amount of the deposit paid; (ii) the address of the property to which the tenancy relates; (iii) the name, address, telephone number, and any e-mail address or fax number of the landlord; (iv) the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy; (v) the name, address, telephone number and any e-mail address or fax number of any relevant person; (vi) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and (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”.

Suurpere v Nice [2011] EWHC 2003 (QB) and Ayannuga v Swindells [2012] EWCA Civ 1789 are clear authority that each of the requirements set out in the Order is important. As Cox J said in Suurprere: “The list of particulars to be provided is detailed and specific. The requirement for landlords to provide such detailed information, together with the sanction for non-compliance, demonstrate the importance attached to the giving of particulars, certified as accurate by the landlord, which will enable tenants to understand how the scheme works and how they may seek the return of their deposit”.

Cox J is right to say that they are specific. The contact details – which are required in respect of the scheme, the landlord, the tenant, and any relevant person – extend to

10 “name, address, telephone number and any e-mail address or fax number”. Any missing information could amount to a defence.

The Order is also specific in terms of the procedures that the landlord is required to set out – including, for example, what happens if either the landlord or the tenant can’t be contacted at the end of the tenancy. That should be checked very carefully, especially where the ‘prescribed information’ doesn’t appear to be on a document produced by the scheme administrator.

One point to look out for is whether the landlord is a limited company. The Companies Act 2006 appears to apply to the certificate required under paragraph 2(g)(vii)(aa) – it is a document that has a formal legal purpose. This means that the certificate must have two signatures in order to be properly executed: either by two authorised company signatories, or by a director whose signature is attested by a witness. HHJ Hand QC described this as “a trap for the unwary. Landlords in this country are very often corporate landlords. It must be open to doubt that very many of them sign these documents in accordance with section 44 of The Companies Act 2006”. (Bali v Manaquel Company Limited, Central London County Court, 15th April 2016).

There are two provisos: first, Section 44 does not apply to companies registered overseas. In order to work out whether the certificate has been properly executed it is necessary to look at relevant company law provisions of the jurisdiction in which the landlord is registered. Second, the Deregulation Act 2015 inserted the following amendment to the 2007 Order: “(3) In a case where the initial requirements of an authorised scheme have been complied with in relation to the deposit by a person (“the initial agent”) acting on the landlord’s behalf in relation to the tenancy – (a) references in paragraphs (1)(b), (g)(ii) and (vii) to the landlord are to be read as references either to the landlord or the initial agent”.

This is apparently designed to allow lettings agents to sign the certificate. What happens, however, if two different members of staff are involved? If the lettings agent staff member is acting as a person (rather than a corporation) when s/he complied with the initial requirements, the Order seems to require that s/he also personally signs the certificate.

11 If, on the other hand, the staff member was acting on behalf of the lettings agency as a legal person, the agency (which is presumably a limited company) can only sign the certificate in accordance with s.44 of the Companies Act.

The prescribed information must also be served on any relevant person – i.e. a person who paid the deposit on behalf of the tenant. Many local authorities pay deposits as part of their homelessness avoidance schemes. It is common for local authorities to offer guarantees rather than formal deposits and it is important to consider whether that constitutes a deposit. I have also seen cases where tenants have paid a proportion of the deposit (even if it is just £50), which attracts the protection of the 2004 Act.

Where a landlord has failed to serve the prescribed information, they can circumvent any defence by serving it late (assuming the deposit was protected within 30 days and the initial requirements were complied with) (s.215(2) of the 2004 Act), or by returning the deposit, before serving the s.21. However, arguably, failure to serve the prescribed information is also a failure to comply with the ‘initial requirements’ if the deposit protection scheme deems it to be (Amak Property Investments (London) Ltd v Laura Sonny (County Court at Central London, Recorder Klein) (this is important because – if it is a breach of the initial requirements as well as being a simple failure to provide the prescribed information – the landlord needs to return the deposit before issuing a claim).

Returning the deposit Sub-section 215(2A) of the Housing Act 2004 allows landlords to escape the sanction for non-compliance with the deposit protection regulation (the sanction being that no section 21 notice may be served) by returning the deposit.

How is a deposit returned? The statute says it must be “returned to the tenant in full or with such deductions as are agreed between the landlord and the tenant” (or alternatively if a penalty claim has been determined). The explanatory note to the legislation suggests that the question is whether “action has been taken to rectify the situation”. Two county court cases (Ahmed v Shah (unrep.) Bradford County Court, 2nd June 2015 and Yeomans v Newell (unrep.) Canterbury County Court, 25th May 2016) suggest that the question is whether the deposit has been ‘made available to the tenant’.

12 Can a landlord who has failed to comply with the deposit regulations escape the sanction by returning the deposit where it had been paid by someone other than the tenant, i.e. a ‘relevant person’? Sub-section 215(2A) applies where the deposit “has been returned to the tenant in full or with such reductions as are agreed”. On its face it only applies in a situation where the tenant paid the deposit and it’s returned to the tenant: the Act doesn’t allow the landlord to return the deposit to someone who paid it on the tenant’s behalf, and you can’t ‘return’ something to a tenant if they never paid it in the first place. There’s some support for this argument in the fact that it’s the same Act that creates the concept of a ‘relevant person’ (a person who pays a deposit on a tenant’s behalf – sub-section 213(10)). If Parliament intended for ss.215(2A) to apply to a relevant person it could have said so. This is an exciting, if cheeky, possibility: perhaps it’s worth advising clients to ask a friend or relative to pay the deposit on their behalf when they move in.

Who can claim? A letting agent is not the proper claimant in a claim for possession (Chesters Accommodation Agency Ltd v Abrebrese (1997) 94(33) LSG 27)). While there is no requirement in the CPR for the Claimant to set out their interest in the land, many claimants do and it is sometimes worth searching the Land Registry. Of course, a tenant is estopped from denying the landlord’s title but it might be useful to know what the Claimant’s interest in the land is. Laws LJ said in Manchester Airport Plc v Dutton [1999] 2 All ER 675 that the Court (in a trespass claim) “has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the license”.

Civil Procedure Rules A new accelerated procedure claim form was published in November 2017, which must be used where a landlord relies on the accelerated procedure. Note that the old claim form N5B, at section 7, does not provide for a situation where the landlord did not comply with the deposit protection requirements but has remedied that by returning the deposit (some landlords might still be using that form). Therefore, unless the claimant makes it clear on the face of the form that s/he has returned the deposit, the facts (which are verified by a statement of truth) are incorrect. That might be seen as particularly serious if, for example, the form was signed by a solicitor, or there had been extensive correspondence (or even previous proceedings) relating to deposit issues. Tenants should ask for the claim to be struck out.

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That principle applies to all of the facts in the claim form. It is worth going through it with the client and making sure that the address, the date of the tenancy agreement(s) and the date of the notice are correct.

CPR 22PD 3.11 sets out who may sign the statement of truth verifying a statement of case (i.e. the claim form): “3.1 In a statement of case, a response or an application notice, the statement of truth must be signed by: (1) the party or his litigation friend, or (2) the legal representative of the party or litigation friend”.

Again, if the claim form is not signed by the landlord or their legal representative, the claim form is not properly verified by a statement of truth and stands to be struck out.

Nick Bano 1MCB Chambers May 2018

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