Who does “his” refer to in the Prescribed Information Order?

by Readers Question

9:42 AM, 17th November 2014
About 4 years ago

Who does “his” refer to in the Prescribed Information Order?

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Who does “his” refer to in the Prescribed Information Order?

The ‘The Housing (Tenancy Deposits) (Prescribed Information) Order 2007’ includes the requirement to provide the following information (paragraph numbers taken from the order): Michael Barnes - Landlords Property118 member

‘(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of
his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the
information provided by the landlord under this article by way of confirmation
that the information is accurate to the best of HIS knowledge and belief.’

I have capitalised ‘HIS’ for the purpose of this question.

I have always believed, given the context, that ‘HIS’ in this paragraph means “the landlord’s”.

However, I have just been reading the DPS template for Prescribed Information (as part of my periodic assessment of my standard documents) and found that the DPS has substituted “the Tenant’s” for ‘HIS’.

So, my question is: to whom does ‘HIS’ refer in the order?

Thanks

Michael



Comments

Mark Alexander

9:45 AM, 17th November 2014
About 4 years ago

One for Romain and/or Industry Observer to get their teeth into I reckon 🙂
.

Romain Garcin

10:09 AM, 17th November 2014
About 4 years ago

If I shorten (bb) a bit, I think it comes to:
"The landlord has given the tenant the opportunity to sign ... by way of confirmation
that the information is accurate to the best of HIS knowledge and belief."

So yes, in my view HIS refers to tenant:
The tenant is offered the opportunity to check the document and to confirm that it is accurate by signing it.

Mark Alexander

10:53 AM, 17th November 2014
About 4 years ago

Reply to the comment left by "Romain " at "17/11/2014 - 10:09":

Thanks for commenting Romain, and it's great to see the REAL you in an Avatar after all this time 🙂
.

Romain Garcin

10:58 AM, 17th November 2014
About 4 years ago

Reply to the comment left by "Mark Alexander" at "17/11/2014 - 10:53":

Hehe, thanks Mark. I considered keeping the Roman legionnaire you nicely picked for me, but then I thought a certain estate agent might not be pleased 😉

George Crofts LLB

13:32 PM, 17th November 2014
About 4 years ago

Both the tenant and the landlord should sign the prescribed information to confirm it is "accurate to the best of his knowledge and belief". As you've identified 2 (1) (g) (vii) (aa) refers to the landlord and as Romain confirmed 2 (1) (g) (vii) (bb) refers to the tenants signature.

I wanted to draw attention to the distinction between the requirements at 2 (1) (g) (vii) (aa) and (bb).

The requirement at (aa) is for the landlord to sign it. Failure to do so is a breach.

The requirement at (bb) is to give the tenant the opportunity to sign, not for the tenant to actually sign. As such, no breach occurs if the tenant does not sign so long as he has been given the chance to do so.

Of course, the best proof that you've served the Prescribed Information is to have a dated copy with the tenants signature on it. If it's possible, always get the tenant to sign.

The distinction above is to stop a claim arising simply because the tenant refused to sign or acknowledge the Prescribed Information. If this happens, so long as you can show that you served the Prescribed Information and gave the opportunity to the tenant to sign no claim could be made.

Industry Observer

18:55 PM, 17th November 2014
About 4 years ago

@ George

'Twas ever thus and with all notices, PI etc. landlord only has to prove they served, not that tenant received it, otherwise they'd always claim the dog ate it.

Best way to achieve this is to include the PI in the tenancy agreement, od course.

I agree with Romain HIS undoubtedly refers to he that is being given the opportunity to confirm that what is being put before him, to sign or not as his choice may be, is correct to his knowledge - the Tenant.

Michael Barnes

8:24 AM, 18th November 2014
About 4 years ago

It is the presence of the word "confirmation" that makes me read 'HIS' as referring to the landlord; the tenant is confirming the landlord's knowledge and belief.

'Confirmation' suggests that it is referring to something that has already been asserted. The only thing that has been asserted is the landlord's knowledge and belief; it cannot confirm the tenant's knowledge and belief because that has not been asserted.

If 'HIS' means "tenant's", then I would expect a word like 'agreement' instead of 'confirmation' and/or a comma after 'accurate'.

George Crofts LLB

12:24 PM, 18th November 2014
About 4 years ago

Reply to the comment left by "Michael Barnes" at "18/11/2014 - 08:24":

Hi Michael, I still believe that (bb) refers to the tenant. I think that the tenant should sign the Prescribed Information and by doing so confirms it is accurate.

" best of his knowledge and belief" is the standard to which the information needs to accurate and this applies to both landlord and tenant.

Having said this, I totally understand what you mean. Having reread the paragraph again, the meaning is far from clear. I agree that a comma after 'accurate' would make it more clear. The main issue is that the sentence is poorly constructed all round. The Pronoun 'HIS' you refer to has no clear antecedent. The nouns 'landlord' and 'tenant' appear before this pronoun in the same sentence so how are we (the reader) meant to know which noun this pronoun refers to.

One possible fix is to replace the pronoun with the noun itself. Having reread your original question, this appears to be what DPS have done (switching out HIS for the Tenants). Presumably, DPS thought that the original wording was unclear too and decided to fix it (Can/Should they do this?).

I don't think anyone can claim that S212-215 Housing Act 2004 and its secondary legislation are well written. Pre Localism Act case law and the Localism Act amendments are signs that the wording left much to be desired. I'd just chalk this oddity up to another draftsman's error.

Michael Barnes

15:42 PM, 21st November 2014
About 4 years ago

Reply to the comment left by "George " at "18/11/2014 - 12:24":

The nouns ‘landlord’ and ‘tenant’ appear before this pronoun in the same sentence so how are we (the reader) meant to know which noun this pronoun refers to.

I wasn't really relating HIS to either 'landlord' or 'tenant' in my reading of the clause, but to 'he' at the start of (bb); the structure of (aa) is similar to, but less complex than (bb) and so a similar interpretation of HIS seems reasonable.

Thus my interpretation is that '"I have given the tenant the opportunity to sign to confirm that MY understanding and belief is correct."

DPS thought that the original wording was unclear too and decided to fix it (Can/Should they do this?).
That was my thought too, and if they have interpreted (bb) incorrectly, then there could be many landlords that are giving incorrect certificates.

I always word the certificate as
"By signing this document, the Landlord certifies that
(aa) [words exactly as in the Order]
(bb) [words exactly as in the Order]

Michael Barnes

15:50 PM, 21st November 2014
About 4 years ago

Reply to the comment left by "Industry Observer " at "17/11/2014 - 18:55":

Best way to achieve this is to include the PI in the tenancy agreement, of course

That is what I do, but there is also the need to serve when tenancy goes periodic.


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