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Superstrike Ltd v Rodrigues

14 June 2013

This case concerned a fixed term AST which commenced before the 6 April 2007 and ended after that date, and was thereafter replaced by a statutory periodic AST under section 5 of the Housing Act 1988.

The landlord then served a section 21 notice on the tenant and sought a court order for possession. The tenant defended that the notice was invalid on the ground that the tenancy deposit was not held in accordance with an authorised scheme as mandated by the provisions of the Housing Act 2004, which came into effect on 6 April 2007.

In this case, the Court of Appeal found in favour of the tenant: The section 21 notice was invalid.

The tenancy deposit was not required to be held in accordance with an authorised scheme when the initial AST was granted since the provisions of the Housing Act 2004 did not apply at the time.
However, these provisions did apply when the statutory periodic AST was created and the question was therefore whether they should have been complied with at that time.

Whether a statutory periodic AST is a new, separate tenancy was not under discussion as section 5 of the Housing Act 1988 plainly makes it so.

Rather, the Court of Appeal held that when a tenancy deposit is “carried over” from a fixed term AST to a subsequent statutory periodic AST the tenancy deposit is deemed received in relation of the statutory periodic AST on the day that tenancy is created.
Therefore, the requirements of the Housing Act 2004 apply and, within 30 days, the tenancy deposit must be held in accordance with an authorised scheme and the Prescribed Information must be given to the tenant.

By generalisation, the same applies whenever a tenancy deposit is “carried over” from one AST to a subsequent AST (whether a statutory periodic AST or not).

Update:
Amendments to the Housing Act 2004 included in the Deregulation Act 2015 took effect on the 26 March 2015. These amendments remove the requirements create by this case.

As long as the tenancy deposit continues to be held by the same authorised scheme there is no requirement to give the prescribed information again when a statutory periodic AST is created, or when a replacement tenancy is granted..

First published , last edited 30/03/2015.