Superstrike rules clarity required for 3 times 3 penalty?

Superstrike rules clarity required for 3 times 3 penalty?

13:39 PM, 17th March 2014, About 8 years ago 47

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Hi All,

Looking for some advice….

We (married couple) have been Tenants since 2nd Feb 13 on a 6 month fixed term AST
On 2nd Aug 13 we signed another 6 month FT AST
On 2nd Feb 14 we signed another 6 month FT AST.

Recently due to repairs not being done, gas certificate not being provided, EPC report not provided etc. we sent an email to the Landlord on 6/3/14 highlighting all the issues and included a request for the reference number for our deposit scheme.

The Landlord had not (confirmed proof) protected our deposit of £550.00 until they had received our email on 6/3/14.

On 6/3/14 the Landlord protected our deposit On 10/3/14

I have read the Superstrike case and am confused…. I have been told that each of the tenancies was a ‘new’ FT Tenancy so it would be classed if court proceedings were issued as 3x 1-3x Penalty.
Others have told me that it would be one case (1x) 1-3x Penalty.

My question who is right?

Many thanks

Red3x3



Comments

sharon underwood

19:51 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "Leanne Frisby" at "17/03/2014 - 15:30":

Hi Leanne I can see why you got angry at previous comment as in your shoes I would probably feel the same, however speaking as a good LL who has just gone through hell with various tenants I can also see why the comment was made. Unfortunately many people view LL as money grabbing monsters which I can assure you is not the case,
I am myself new to this site & having just come home after working myself to the bone on account of some truly horrendous tenants I was very surprised to see a tenant being able to be able to post on this site,
I think the previous comment was probably understandable from a landlords point of view & would raise the question as to why you kept signing a new agreement, BUT before you shoot me down I do understand their are some truly horrendous LLs out their & obviously if you have a family etc you may not have been able to keep moving or indeed wanting to move.
I am not saying that the comments made where correct or incorrect I think what I am trying to say is now that you have signed up on this site maybe you could read some of the posts & try to see that actually being a LL is very demanding & VERY frustrating as the law seems only to favour the tenants & there may be a very good reason why your LL has not gotten around to doing those things that you want doing.
I could also be very wrong & he is just a very bad LL so maybe having a good long talk to your LL would produce better results for you & him.
I don't suppose for 1 min you would want to destroy anyone or anything so I hope you can find a happy compromise.
I would like to think that you could
Good luck I hope this get resolved

Mark Alexander - Founder of Property118 View Profile

21:10 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "sharon underwood" at "18/03/2014 - 19:51":

Hi Sharon

Property118 is evolving and we now have several posts from tenants. We are, after all, a property news and discussion forum and well over 50% of our articles are submitted by our readers.

We can all learn from each other 🙂
.

Industry Observer

21:15 PM, 18th March 2014, About 8 years ago

Mark

You may be right and eventually it may be shown that it is indeed any old 2 months if you serve what in effect was a s21(1)(b). But it is not clear that it is any old 2 months, far from it. The date issues have not now been clarified in the case of Spencer vs Taylor such that it is now any old two months notice because the decision did not say that it was any old 2 months.

It is possible and indeed quite likely that it would still have to hit a day before the rent due date, the end of a period of the rent. The decision simply said a s21 could be used, but did not dictate its structure. If it is any old 2 months then that renders the inclusion of s21(4) obsolete.

The odd thing in Roy's case is that it ever got anywhere near Court when a s213 claim is an open and shut case and the Landlord is either guilty or not, an offence has either been committed or it has not.

I do come to the same conclusion as you Mark the maximum number of claims is the maximum number of offences. The award is then discretionary per claim.

I ask again Mark what ".... ambiguity left in the wake of the Superstrike case"? Can you spell out succinctly and simply what the ambiguity is?

Mark Alexander - Founder of Property118 View Profile

21:26 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "18/03/2014 - 21:15":

The ambiguity post Superstrike is whether or not an offence is created if prescribed information is not re-served when a tenancy becomes a statutory periodic if the deposit had previously been protected and prescribed information had been served correctly when the tenancy fixed term tenancy was created.

The reason this remains ambiguous is that no deposit was ever protected in the Superstrike case.

I understand your opinion and I agree with your advice to play it safe. Despite this I still do not agree with your opinion.
.

Industry Observer

9:12 AM, 19th March 2014, About 8 years ago

Red herring Mark.

TDP has to be followed on all occasions when the Law deems it has to be.

The Law deems this to be on every occasion there is a new tenancy, such as a re-let (obviously) or a renewal or of course a periodic. How does the fact the deposit was never protected change any of that, they are all, as in this article here, individual "protecable incidents".

Looks like straw grasping to me Mark and that you are arguing that having broken the Law means it should be ignored somehow, but maybe I am still missing the point. Or perhaps you and others disagree because it impacts on you personally or could do, whereas it has no impact on me at all other than a duty to advise clients correctly.

I would have thought the advent of the Localism Act 2011, plus the decisions in Superstrike, Hohnson, Suurpere and Ayannuga that all (I think) post date it would have made all Landlords and agents realise the importance of the deposit, the PI and doing it right all the time - even if inconvenient and you all think the Law is an ass.

Mark Alexander - Founder of Property118 View Profile

9:38 AM, 19th March 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "19/03/2014 - 09:12":

I stand by my previous comment to which you are replying.
.

Michael Barnes

22:14 PM, 19th March 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "19/03/2014 - 09:12":

I agree with Mark that there is ambiguity.

Given that the superstrike judgement was that the deposit was deemed to have been received when the tenancy went periodic, it is possible that the court may (or may not) take the view that for tenancies going periodic since deposit protection legislation came into force and for which the deposit was correctly protected and the prescribed information properly served for the fixed term tenancy

a) the deposit is deemed to be protected, and
b) the prescribed information is deemed to have been served

Romain Garcin

22:43 PM, 19th March 2014, About 8 years ago

Reply to the comment left by "MdeB " at "19/03/2014 - 22:14":

A deposit cannot be deemed to be protected. Either it is or it is not, and this is for the scheme to decide: In statute, deposit protection means complying with the scheme's requirements.

The statute says that "when a deposit is received in relation with an AST" (Superstrike clarified what that meant) the landlord must within 30 days:
- comply with the scheme's initial requirements,
- provide the PI to the tenant.

Thus regarding re-serving the PI, IMHO the only uncertainty is what a court would decide if none of them have changed.

Michael Barnes

9:00 AM, 20th March 2014, About 8 years ago

Reply to the comment left by "Romain " at "19/03/2014 - 22:43":

Thanks for that clarification on protection.

I was thinking back to the discussions that were going on when superstrike judgement was passed and whether or not we needed to go through a new protection process, and had not recalled that it is 'comply with scheme's initial conditions' and that the schemes have since clarified this for roll-over to periodic.

Industry Observer

9:04 AM, 20th March 2014, About 8 years ago

I agree with Romain except that it is the other way round and Statute decides and Schemes have to operate, including their rules, so members comply wuith the Statute.

Where everyone makes the mistake, and where there may indeed be clarification(?) and changes, is in deciding that the "nanno second" doesn't actually exsit and that the deposit is continuously protected and thus the PI already served does not need to be repeated.

I do not expect this to happen.

For those not familiar with this nanno second concept, or the "protectable incident" as I call it, this is the split second in time between tenancies when by definition the protection ends and then starts again. So this happens on a renewal or a periodic if one tenancy ends then there is a spilt second (or less) in time before the new one starts.

That new one triggers a protecable incident, you have to re-protect and re-serve.

I agree that the position for those whose tenancy went periodic after 6.4.07 is very difficult as unless familiar with s5 of the 88 Act and its obvious declaration that a periodic is a new tenancy (as confirmed in Superstrike) then you would have taken no action.

Renewals are different and there were plenty of dstatements to the effect that a renewal is a new tenancy, even if on identical terms, same parties etc.

Is anyone out there actually aware of firm evidence than an appeal is going to the Supreme Court on either Johnson v Old (rent in advance) or Superstrike (TDP reneal) or even Spencer v Taylor (to clarify if it is any old 2 months on a s21 served in the periodic state to terminate same).

I mean HARD evidence - not conjecture, wishful thinking, what you heard from a mate down the pub. There is constant reference to situations being reviewed legally - but actually are any of them?

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