Housing Law case study: Is a S.21 notice valid if the landlord attempts to return the deposit via the DPS or after the service of the notice?
In June 2015, in a case heard at Bradford County Court, Solicitor Jonathan Starr of Switalskis Landlord and Tenant department successfully prevented the client from losing their home on the grounds that their deposit had not been correctly protected or returned prior to the service of the Section 21 Notice.
Whilst the court’s finding isn’t binding on other courts, this case raises some important points for future Section 21 cases.
Section 21 notices and eviction
A Section 21 Notice of Possession is used by a landlord to gain possession of a property that has been let under an Assured Shorthold Tenancy agreement. Once a tenant have been served a Section 21 notice, they have 2 months to vacate the property after which time the landlord may apply to the court to obtain a court order to evict the tenant.
Under Section 215(1) Housing Act 2004 a Section 21 notice is only valid if the landlord has protected the deposit using a deposit scheme such as the Deposit Protection Scheme (DPS) within 30 days of receipt and has provided the tenant with the necessary information about the scheme as prescribed by the act.
The case: Ahmed v Shah, June 2015
The client is a tenant under an Assured Shorthold Tenancy which started in February 2014. At the beginning of the tenancy a deposit of £600 was paid. However, the deposit was not protected under a deposit scheme until the 12th August 2014 and the tenant was not provided with the prescribed information.
Court proceedings to evict the tenant were issued in October 2014, based on a Section 21 notice allegedly served at the commencement of the tenancy. We successfully defended the proceedings on the grounds that whilst the service of the Section 21 notice was disputed the deposit had not been protected, and as a result the Section 21 notice would have been invalid anyway, as it would have been served prior to the protection of the deposit.
The landlord then attempted to return the deposit through the DPS repayment system, which our client did not accept. Under Section 215(2A) Housing Act 2004 if the deposit has been returned then Section 215(1) does not apply meaning a Section 21 notice served on the tenant will be valid.
The landlord then served a fresh Section 21 notice in October 2014 and proceedings were issued in February 2015. We filed a defence on the grounds that the deposit had not been protected within the 30 day time period and had not been returned.
In June 2015 the landlord attempted to return the deposit again, sending the client a cheque for £600, claiming that he had now returned the deposit.
The matter went to trial and was heard on the 29th June 2015 by Deputy District Judge McLaughlin where it was accepted by both parties that the prescribed information had not been served and that the client had not accepted the return of the deposit through the DPS.
The landlord sought to argue the deposit had been repaid as it was open for the tenant to accept it and that now that it had been repaid the notice would be valid under Section 215(2A).
Both points were disputed by ourselves.
The Court’s decision
The court found that there was no evidence confirming that the full deposit had been made available to the client for her to accept. The landlord had relied upon emails sent to our client by the DPS notifying her that the landlord was seeking to return the deposit. These emails did not specify that it was the full deposit and there was no evidence from the letting agent stating that it would have been the full deposit repaid. As such the court found that the deposit had not been returned.
The court also found that returning a cheque does not retrospectively validate a section 21 notice.
Jonathan Starr is a Housing Solicitor based at Switalskis Leeds branch. Jonathan deals with all types of Housing Law cases, providing expert advice to landlords and tenants across Yorkshire. To contact Jonathan or another member of our specialist Housing Law team, call 0800 138 0458 or send a message via our contact page.