Tenancy deposits have been the subject of much judicial consideration, this recent case shone some light on how and when a landlord must provide their tenant with information regarding the protection of their tenancy deposit.
In a usual context (of shorthold tenancies with deposits received post April 2007), the requirements for the provision of information can be found in section s213(5) of the Housing Act 2004; the case in question concerned facts that required s215B of that act, making a complex application to what is usually a simple test.
The main issue in this latest dispute started at the end of the fixed term when the tenancy became a statutory periodic tenancy (by virtue of S5(2) of the Housing Act 1988). At this point, the landlord decided to change the deposit scheme and then sent information concerning this to the tenant via email. However by this time, this email was no longer used by the tenant as they told their landlord years prior that the email in question had been hacked.
At first instance the judge decided that the duty to provide the prescribed information under s213 only applied when the deposit was received. The judge decided that if the deposit was transferred (as was the case in this instance) then the duty to serve the prescribed information again did not apply. The judge held that the tenant’s original email address could still serve as an email address for their tenant [because the subsequent email address was said to be only for another purpose]. The possession order was made and was subsequently appealed by the tenant with cross appeals from their landlord.
On appeal the Circuit Judge held that the transfer of the deposit gave rise to a fresh obligation to provide prescribed information because, in this instance, it was not kept in the same authorised scheme. Thus, the appeal was allowed due to the change in scheme. It would follow from this that the possession order had to be set aside. The Circuit Judge also made comment on the email address point that this change was clearly a change for all purposes, not just the purpose specified.
Errors with tenancy deposit protection can be capitalised upon by tenants. Currently it is commonplace to see no-win no fee organisations trying to pursue landlords for tenancy deposit awards. Also, it is a defence to a section 21 based possession claim if the deposit is not correctly dealt with.
The implementation of the Renter’s Rights Bill will end the s21 notice basis for possession which results in s8 notices being the only lawful way to recover possession (other than by agreement between the landlord and tenant). This Act will also restrict the ability to serve valid notices seeking possession if the tenancy deposit requirements have not been complied with (other than in cases of anti-social behaviour). Landlords will then bear the burden of establishing their particular ground alongside making sure all documents and processes (such as tenancy deposit protection) have been correctly followed otherwise their claims will fail.
At Benchmark Solicitors, we deal with possession claims, alongside various disputes regarding properties on a daily basis. Should you require any assistance with your property, as a landlord or tenant, please do not hesitate to contact us.
10/09/2025 Jack Wilson, trainee solicitor