Summary Judgment against landlord in claim for possession based on s.21.

On Monday 26 June, Sally Blackmore – representing the Defendant tenant in an claim for possession of residential property founded on a s.21 notice – obtained summary judgment against the Claimant because, on his own case, he had protected the notice and served the prescribed information provided in respect of a deposit too early and, accordingly, had not complied with s.213 of the Housing Act 2004.

Section 213(1) provides that any deposit paid in connection with a shorthold tenancy must, from the time it is received, be dealt with in accordance with an authorised scheme.  Section 213(3) provides that where a landlord receives a tenancy deposit, the initial requirements of an authorised must be complied with by the landlord within the period of 30 days, beginning on the date the deposit is received.  Section 213(5) provides that a landlord who has received such a deposit must give the tenant and relevant person information which is commonly known as ‘the prescribed information’ (it is prescribed by the Housing (Tenancy Deposits)(Prescribed Information) Order 2007 see, in particular, article 2 of that Order).  By s.213(6), the prescribed information must be given to the tenant and any relevant person in the prescribed form or in a form substantially to the same effect (s.213(6)(a)) and within the period of 30 days beginning with the date on which the deposit is received by the landlord (s.213(6)(b)).  A landlord who has not protected a deposit that he has received or provided the prescribed information may not give his tenant a notice pursuant to s.21 of the Housing Act 1988 (see Housing Act 2004, s.215(1A) and s.215(2)).

The deposit was provided by the London Borough of Barnet, which – the landlord said – requires a landlord to satisfy certain matters before the money for the deposit will be released.  These matters include that the Council be shown a deposit protection certificate and evidence that the prescribed information has been given to the tenant.  Accordingly, the landlord protected ‘the deposit’ and said that he had given the tenant the prescribed information before he actually received the money for the deposit from the Council in order to satisfy the Council’s conditions for the release of the money. (The tenant denied receipt of the prescribed information, but this was not relevant to the application for summary judgment.)

The judge was satisfied that, on the wording of s.213(3) and s.213(5), Parliament had intended the deposit to be protected and the prescribed information given to the tenant after the deposit had been received.  On his own case, the landlord had protected the deposit and given the prescribed information before he received the deposit.  Accordingly, on his own case, the landlord fell foul of s.215(1A) and (2) and could not give the tenant a s.21 notice.  It followed that his claim could have no real prospect of success and there was no other compelling reason why the case should be disposed of at trial.