Flicking through the August issue of Legal Action Magazine I came across this little case (also reported on Nearly Legal) which supports two of the things I have been saying on this blog.
Namely the need to serve the prescribed information and the date of the ‘last day of a period of the tenancy’.
Although the case relates to a situation from before the tenancy deposit changes in April, these two points are largely unaffected by this.
Lappin v. Surace
Romford County Court – 13 June 2012
In 2009 Ms Surace entered into a tenancy agreement for 12 months with landlord Mr Lappin. The expiry date of the tenancy was 19 April.
A section 21 notice was served on that date and a tenancy deposit taken. This was duly protected but the prescribed information was never served on Ms Surace.
After the end of the fixed term, the tenancy ran on as a periodic. Mr Lappin served two further section 21 notices on the tenant, but expiring on the last day of the month. The reason for this it seems was that the rent was paid on the first day of the month.
Mr Lappin then issued proceedings for possession.
- At the first hearing:
The Judge made the order saying it did not matter whether Ms Surace knew that the deposit had been protected or not, and that as the rent was paid on the 1st day of the month, the s21 notices were correctly drafted.
Ms Surace appealed to the Judge, HHJ Wulwik.
- At the appeal hearing
The Judge held that the original s21 notice was invalid as the prescribed information had not been served.
He also found that the subsequent notices (which did not contain any saving clause) were also invalid. In this case the last day of the period of the tenancy was the 19th day of the month – the fact that Ms Surace paid her rent on a different day did not alter this.
So Ms Surace won her appeal and was entitled to stay in the property.
Lessons for landlords – make sure you serve the prescribed information on your tenants if you take a tenancy deposit, and either have a saving clause in your section 21 notices or make sure you get the date right!
Lessons for us all – if you think the Judge’s decision is wrong, it may be worth appealing. They do make mistakes sometimes.
Industry Observer says
September 20, 2012 at 4:43 PMFirst Judge obviously wrong on count 1 correct on count 2
Second Judge correct on count 1 wrong on count 2
Except there was no saving clause had there been I suspect he would have commented differently on the s21 dates.
There is still no definitive answer on this issue of is it the Rent Due Date that dictates a period of the tenancy or the Anniversary Date of the agreement being terminated?
This as far as I am aware ws not an actual Appeal Court decision – can’t be as only one Judge – more an Appeal to a Circuit Judge to correct an error by a District Judge?
Sadly we are no further forward and you could go to Court with Judge A and method A one day and either get an order or be thrown out, and go to Judge B with methos B the next day and get the same outcome.
It’s ‘just another’ case in a Lower Court – isn’t it?