Superstrike Ltd vs Rodrigues Tenancy Deposit Protection Court of Appeal

Superstrike Ltd vs Rodrigues Tenancy Deposit Protection Court of Appeal

20:45 PM, 16th June 2013, About 9 years ago

Text Size

Superstike vs Rodrigues Tenancy Deposit Protection Court of AppealMy reading of a recent Court of Appeal ruling (Superstrike Ltd vs Rodrigues) is that thousands of possession orders may have been granted in error due to lack of clarity in Tenancy Deposit Protection legislation.

What’s worse is that the vast majority of landlords may have inadvertently broken the law and face bankruptcy!

Scary stuff hey?!

So what is it all about?

Well, in the case of Superstrike Ltd vs Rodrigues, a legal argument affecting Tenancy Deposit Protection, the Court of Appeal has held that a Statutory Periodic Tenancy is not in fact a continuation of a fixed term tenancy and is in fact a brand new tenancy. The legal implications are that deposits paid by tenants needed to be re-protected within 30 days of the new statutory periodic tenancy being created.

How many landlords re-protect tenants deposits and re-issue a new tenancy deposit protection certificate and prescribed information within 30 days each time a fixed term AST ends and a Statutory Periodic Tenancy begins?

Very few I suspect.

The ramifications of this ruling are that landlords might be liable to be fined 3X the deposit plus the deposit and be prevented from enforcing a section 21 notice if a deposit was not returned to the tenant before the notice was served.

Getting worried?

You and me both!!!

It is too late to do anything for every tenancy that became statutory periodic more than 30 days ago.

This was not what I wanted to hear so I read the full details of the judgement

PLEASE, don’t shoot the messenger!!!

Hopefully, the legal eagles reading this will be able to pick holes in the legal argument. I’m also hoping a Supreme Court will eventually add the further clarity now required to the Court of Appeal decision or that new emergency legislation will be introduced to prevent the possible collapse of the Private Rented Sector as we know it.

Yes people, it’s that serious!

Can you afford to pay fines of up to four times the value of every deposit you or your letting agent has collected from tenants in the last six years in respect of fixed term tenancies which have become statutory periodic tenancies?

OK, so having now scared the pants off most of the people who read this, let me pose a few questions to the legal eagles and the politicians who are responsible for this mess. We must not forget that all of this has come about as a result of badly drafted legislation which was passed by politicians. Furthermore, it appears that judges may have been making bad decisions on possession cases due to incorrect interpretation for years. If politicians, judges, solicitors and deposit protection schemes have not been able to get clarity on what the law was meant to be then what hope for landlords and letting agents?

If the latest ruling is legally correct, how many possession orders have been granted which should not have been granted? Who is liable for these cock-ups? I suspect many of the people who have lost their homes will want compensation but who will they get it from?

Next question.

Might it be arguable that our tenants did not apply for a refund of their deposit at the end of their tenancy and that no deposit was in fact necessary for the new statutory periodic tenancy? Might this be a viable argument in that it was never written anywhere? If so I can’t see how landlords can be fined on that basis. That doesn’t help the possession argument but it might avoid mass bankruptcies amongst landlords.

Do landlords have any recourse to tenancy deposit protection providers where they have issued advice on forums like this one? The reason I ask this is that I can easily produce evidence to prove that all deposit protection providers interpretations of the law and their advice relating to this issue have clashed with the ruling in this Court of Appeal case.

Perhaps the most worrying aspect of all of this is that one ambulance chasing law firm have already set in place a “no win no fee” opportunity for tenants to begin making claims against their landlords.

Now, given that it will be in ALL landlords interest to unite at this point, please may I remind you of The GOOD Landlords Campaign and your ability to contribute to the work we do here when you become a member of Property118

Please post comments below. Comments from members are easily identifiable.

 



Comments

John Walker

18:02 PM, 17th June 2013, About 9 years ago

As you say Mark, the ramifications of this judgement are far reaching and frightening,with the potential to threaten the livelihood of landlords like myself.
Is the judgement being challenged,presumably in the Supreme Court?

Mark Alexander - Founder of Property118 View Profile

18:09 PM, 17th June 2013, About 9 years ago

@Robert M "almost full confidence" is that a bit like being 'nearly pregnant'? (Just kidding)

I wouldn't mind getting that Consulting job either 🙂

Mark Alexander - Founder of Property118 View Profile

18:11 PM, 17th June 2013, About 9 years ago

@John Walker - I don't know, hopefully Steve Woods, the solicitor acting for the landlord in this case will let us know.

Rob

18:24 PM, 17th June 2013, About 9 years ago

Would it help if we re secured all the deposits that are on periodic now?? But then what do we put down on the form as the "End Date". Because there is no end date with periodic??

Steve Masters

18:29 PM, 17th June 2013, About 9 years ago

Surely it is the deposit *Protection* that needs to be continued/renewed when an fixed term AST goes periodic. If the protection provider says protection *continues* then the new deposit is still protected under the old protection so paperwork does not need to be re-issued and we are safe.

It all depends on what the different protection providers say.

Am I right?

Mark Alexander - Founder of Property118 View Profile

18:38 PM, 17th June 2013, About 9 years ago

@ Rob - No

@Steve Masters - No

Sorry guys, please don't shoot the messenger

18:43 PM, 17th June 2013, About 9 years ago

Justin Selig (17-06-2013 at 16:28) has stated that an SPT expires at the end of each period and therefore in general lasts a month, so the end date will be the day before the new tenancy starts. Perhaps we should all re protect the deposit on a monthly basis?

The law of unintended consequences rears its ugly head once again.

Rob

18:46 PM, 17th June 2013, About 9 years ago

So basically we all now have to just sit back and wait to get sued! Cracking.

Mark Alexander - Founder of Property118 View Profile

18:52 PM, 17th June 2013, About 9 years ago

@David Price - that's about the nuts and bolts of this ridiculous fiasco yes.

@Rob - I have every reason to believe that will not be allowed to happen as the consequences for our entire economy and the potential for civil unrest are unimaginable. Wait - YES - get sued - unlikely in my opinion although some poor sod is going to be the test case. One thing is for sure, the Private Rented Sector and all of the bodies representing it need to put aside their differences and unite to fight this battle.

Steve Masters

18:55 PM, 17th June 2013, About 9 years ago

The Court of Appeal ruled that the *tenancy* and therefore the *deposit* are new on roll-over from fixed to periodic (and potentially as each period rolls-over) but surely it does not rule on the status of the *Deposit Protection* and whether that continues or is new.

If the protection provider says the protection continues then it continues and is not new. Do you see what I mean?

Agreed some protection providers have taken a business decision that a new tenancy is an opportunity to charge a new fee, but some have taken the decision not to charge and state that protection continues.

If you think I am wrong please explain why.

Landlord Tax Planning Book Now