By now everyone has heard of the landmark decision of Lord Justice Lloyd on 14 June in a case that has sent shockwaves through the lettings industry. Put simply, the Court of Appeal decision in Superstrike v Rodrigues states that where an AST started before the advent of the deposit registration regulations but rolled over into a statutory periodic tenancy after 6 April 2007, any deposit should have been registered and prescribed information served. The implications of that decision are significant for the thousands of landlords and their agents who still have statutory periodic tenancies that arose in the months after April 2007. The decision is also a worry for all of those tenants who may have been evicted since then on the basis of an “unlawful” section 21 notice. After all, if the deposit was not registered and prescribed information not served, their landlord was not able to serve a valid section 21 notice to bring the AST to an end.
Since April of 2007 official sources suggest that over 1 million individuals have been forced to relocate in circumstances where, thanks to the Superstrike decision, a possession order was made on an invalid section 21 notice. The implication for landlords, managing agents and the judicial system is troubling. It is doubtless causing sleepless nights for those in the Department for Communities and Local Government charged with bringing some order out of the chaos.
Accordingly, it will come as no surprise for readers to learn that over the last few weeks there have been a number of meetings at a fairly senior level between representatives of the lettings industry, including ARLA, the principal deposit registration organisations and government officials to map out a way forward. Whether Mark Prisk, the current housing minister, will table new legislation to effectively overturn the Superstrike decision remains to be seen. However, with Parliament about to recess as I type this blog, it looks highly unlikely that there will be any significant change in the current position until October 2013 at the very earliest.
In the circumstances what should agents and landlords do if they have a pre-April 2007 AST which is still running on as a periodic tenancy?
The short answer is to refund the deposit as soon as possible to the tenant. Sadly, with the implementation of the Localism Act 2011 last year, it is no longer an option simply to register a deposit late if one wants to serve a section 21 notice. The deposit must be refunded in full.
To make matters worse, even if a deposit was registered on time – and remember time limits changed with effect from 6 April 2012 – if the prescribed information was served late, that now triggers a penalty of between 1 and 3 times the deposit plus the return of the deposit itself.
One intriguing aspect of the Superstrike decision concerns comments by Lord Justice Lloyd which suggest that when an existing AST lapses from a fixed term into a statutory periodic tenancy, it may be necessary to re-register the deposit, or at least re-serve the prescribed information. Logically this must be correct as the effect of the Housing Act 1988 is to create a “different” type of tenancy when an initial fixed term comes to an end. As a purely precautionary measure, therefore, we are now suggesting to all our clients that at the end of a fixed term, prescribed information is indeed re-served. Individual landlords and managing agents should also check with their deposit registration provider as to what else might need to be done to avoid their tenancy becoming a future test case!
One area which is being actively explored by some of the larger national chains is whether the entire problem of re-registration/re-service might be avoided by changing the definition of the fixed term. To avoid a statutory periodic tenancy arising at the end of, say, a twelve month AST, consider adding a rider to the definition of the term. This might provide that the tenancy continues “thereafter on a month by month basis until terminated by two months notice on either side”. Arguably this could prevent the tenancy changing from a contractual to statutory tenancy in the way that Lord Justice Lloyd mentioned in his judgment.
Clearly this has implications for renewal fees and flexibility. Accordingly, landlords and agents should seek professional advice both on the efficacy of adding such a clause and its exact wording.
As always, subscribers to our telephone helpline can receive “free” advice by calling the dedicated line provided. If you are not already a member of the Dutton Gregory telephone helpline service, please telephone one of our team on 01962 844333 for further details.
ROBERT J BOLWELL
Head of Landlord and Tenant Department