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Superstrike vs. Rodrigues: Landlords Panic Explained

Understand the Superstrike vs. Rodrigues case impacting landlords. Insights from Andrew Perriman at Teesside Law Clinic PG Legal. The Court of Appeal's recent ruling elucidated, guiding both landlords and tenants.

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Superstrike vs. Rodrigues: Landlords Panic Explained

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  1. SuperstrikeLandlords in a panic!

    Andrew Perriman Teesside Law Clinic PG Legal
  2. Summary of the Superstrike vs. Rodrigues case The recent Court of Appeal case of Superstrike vs. Rodrigues concerns an assured shortholdtenancy that was created in January 2007 prior to the introduction of mandatory tenancy deposit protection on 6 April 2007. The tenancy continued on a statutory periodic basis from January 2008 and the deposit remained unprotected. In 2011 a Section 21 notice was served to end the tenancy. The Court of Appeal has ruled that when the tenancy continued on a statutory periodic basis in 2008 a new tenancy was made and a new deposit was deemed to have been received, and therefore fell under the requirements of tenancy deposit protection legislation. Having not met those requirements (to protect the deposit and serve Prescribed Information (PI), including serving the scheme leaflet, or equivalent) the landlord was not entitled to serve a s21 notice.
  3. Deposits taken on assured shorthold tenancies before 6 April 2007 where these tenancies became statutory periodic tenancies or fixed term tenancies after 6 April 2007. The decision in the Court of Appeal has clarified that, in this scenario, the deposit should be protected and the Prescribed Information served at the time the tenancy became periodic or was renewed. If you hold a deposit taken on an assured shorthold tenancy before 6 April 2007 and it remains in place and unprotected when a statutory periodic tenancy arises you should: • protect this deposit with an authorised scheme now; • issue Prescribed Information now; and • retain records to demonstrate how and when you did this.
  4. However: it is the case that you will have protected the deposit late and will also have served the Prescribed Information late. In these circumstances you can only issue a section 21 notice if you return the deposit to the tenant in full, or with agreed deductions. A Court may also issue you with a penalty in respect of the late protection but your action in protecting the deposit late, and keeping records to demonstrate that you did this because of Superstrike, may help to mitigate this.
  5. New statutory periodic tenancies or renewals on a new fixed term where the deposit is currently protected There is significant speculation about the impact of the Superstrikedecision on: • deposits relating to statutory periodic tenancies which were created when an assured shorthold tenancy with a protected deposit expired; and • deposits relating to a renewal of an assured shorthold tenancy with a protected deposit.
  6. The decision in Superstrikeconfirms that a statutory periodic tenancy is a new tenancy.
  7. Important Question deposit that has already been protected, needs to be re-protected, and PI re-served. It should be stressed that these issues were not directly addressed in Superstrikebut we would suggest that this could be an argument made for a tenant in any future case.
  8. Implications Where a deposit was protected in relation to a tenancy, which has now become a statutory periodic tenancy or been renewed for a further fixed term, you should check that it remains protected by the scheme. If you have not served the Prescribed Information at renewal of the tenancy or it becoming a statutory periodic tenancy there is a risk that a Court might find that you have not complied with the legislation and not allow you to use the section 21 procedure. In addition you may find that you are subject to a financial penalty for not serving the Prescribed Information.
  9. Options Option 1: Do nothing… Option 2: Issue the Prescribed information now Option 3: Issue the Prescribed Information before you serve a Section 21 notice
  10. New statutory periodic tenancies or renewals on a new fixed term where the deposit is currently protected It is recommended that: in order to ensure full compliance with the implications of the Superstrikedecision, you should re-serve the Prescribed Information within 30 days of each renewal or the creation of a statutory periodic tenancy.
  11. Questions If in doubt seek legal advice.
  12. Dealing with difficult tenants Discussion…what issues could arise?
  13. Section 21/8 Notices to quit Section 21 A 'Section 21 Notice to Quit', so called because it operates under section 21 of the Housing Act 1988, is the notice a landlord can give to a tenant to regain possession of a property at the end of an Assured Shorthold Tenancy (AST). The landlord is able to issue the tenant with a section 21 notice without giving any reason for ending the tenancy agreement.
  14. Section 21 Under section 21 of the Housing Act 1988 as amended by the Housing Act 1996, a landlord has a legal right to get his property back at the end of an assured shorthold tenancy. a minimum of two months' notice in writing, stating that possession of the property is sought. The two months starts when the tenant receives the notice not when the notice was written/posted.
  15. Section 8 A 'section 8 notice to quit', also known as a 'section 8 possession notice', is so called because it operates under section 8 of the Housing Act 1988. A section 8 notice is different from the more common section 21 notice to quitin that is served on the tenant by a landlord wishing to regain possession of a property during the fixed term of an Assured Shorthold Tenancy (AST). Issuing a section 8 notice to quit on a tenant does not guarantee that the court will grant a possession order. It depends largely on which grounds are relied upon as well as the strength of the landlord’s argument.
  16. Sources: Localism Act Housing Act 1988 Housing Act 1996 Housing Act 2004 Andrew Perriman Teesside Law Clinic: PGLegal
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