Incorrect Solicitors Advice on How to Rent Guide and Prescribed Information?

Hello, I’m seeking advice from my fellow landlords, PRS and s21 notice experts on a disagreement with my solicitors regarding the validity of my s21 notice to my tenants.

Barely a week to the expiry of the s21 notice (from all indications tenants do not plan to move out by the date of expiry, so I’m now preparing to seek a court repossession order), my solicitors (whom I engaged 4 weeks ago through my Landlord’s insurance) have informed me that my s21 notice is not valid and will need to be reserved after addressing the following 2 issues:

1. How to Rent Guide sent to the tenants by email is non-compliant as the tenants have not previously consented to receive documents electronically, making the s.21 invalid. I disagree with this because my tenancy agreement signed by myself and the tenants contains a section called ‘Address for Notices’ which states: “For any matter relating to this tenancy, the Tenant may be contacted at the Property or through the phone number or emails…” The property address, tenant’s phone no and email addresses are listed under this clause. My solicitor’s interpretation of this clause is that the tenant may be contacted by email, as opposed to saying that documents may be served on the tenant by email. In the eyes of the law general correspondence and formal service of documents are treated differently and therefore unless there is a clause that states that the Tenant will specifically accept service of documents by email, we can’t rely on this clause as having obtained an agreement from the Tenant to serve the How to Rent Guide by email. On this basis, they have advised serving the Tenant a hard copy of the How to Rent Guide and then a new s.21.

2. Solicitors concluded that the prescribed information document issued to the tenants is incomplete because the document does not state the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy. I protected the deposit under the MyDeposit insurance scheme. Per guidance from MyDeposit, I gave the tenants a signed copy of the 2-page deposit certificate and the Information for tenants leaflet within 30 days of receipt of the deposit. According to the guidance on the MyDeposit website, both documents constitute the Prescribed Information under their scheme. Section 3 of the deposit certificate document outlines how the requirements of the Housing Act 2004 – Prescribed Information Order have been met by virtue of the 2 documents, including Section 3.g.vi, which instructs the tenant to refer to the Tenancy agreement for details of circumstances when all or part of the deposit will be retained by the Landlord. My tenancy agreement contains clauses which clearly outlines these circumstances.

My solicitors insist that I re-issue a Prescribed Information (PI) document to the tenants which stipulates in a single document all the requirements of the PI including references to the specific clauses in the tenancy agreement outlining circumstances when the deposit may be retained and then serve a new S.21. I am aware that some other deposit schemes provide a PI template that allows for all aspects of the PI to clearly stated out and met on one document, however on the basis that I have followed the MyDeposit guidance on what constitutes the PI under their scheme, I do not agree with my solicitor’s conclusion that my s21 is invalid on this basis.

I would appreciate your views and guidance on the above 2 points with regards the validity of my s21 expiring in a few days. I really do not want (nor do I agree) that I serve a new s21 and wait another 2 months before starting court eviction proceedings.

Many thanks

Rose