As many landlords will be aware, the requirements of the Tenancy Deposit Scheme (TDS) require them to serve ‘prescribed information’ on the tenants. This applies to all assured short hold tenancies that have commenced from 6 April 2007 and also fixed term tenancies starting before that date that have become a monthly rolling periodic tenancy after that date.
Most landlords are aware that they must comply with the TDS by protecting the deposit with a recognised scheme provider and also serve the prescribed information within 30 days of receiving the deposit. But what exactly is this prescribed information?
It seems apparent that most landlords don’t know. This could be a major problem for many of them as the ramifications of not serving the correct information are potentially significant. For instance, a Section 21 Notice to Quit cannot be served until the correct information has been provided. If there is late compliance with serving the correct information, the tenants can bring a Claim against the landlord in accordance with Section 214 of the Housing Act 2004 for up to three times the amount of the deposit.
A full list of the prescribed information is set out at article 2 of the Housing (Tenancy Deposit) (Prescribed Information) Order 2007/797. This is set out in full below this article but in general, the prescribed information must:-
• Provide all of the contact details for the TDS provider, landlord and tenant;
• Provide the information leaflets supplied by the TDS;
• Explain the various procedures and facilities that deal with what happens if there is a dispute at the end of the tenancy;
• Provide detail relating to the amount of the deposit, where it is being held and how to make a claim if there is no agreement regarding deductions.
The case of Ayannuga v Swindells (2012) found that it was not enough for the tenancy agreement to make reference to the TDS provider’s website or another source where all the prescribed information was held. It must be set out or attached to the tenancy agreement itself.
My advice to landlords would be to print out the full version of the legislation setting out the prescribed information and go through the tenancy agreement and any leaflets or certificates you provide to the tenant after receiving a deposit. Tick off all of the information set out in the legislation to ensure that nothing has slipped through the net. If any information is missing, it is vital that the lease is amended.
If landlords go through this legislation and realise that they have failed to comply with the regulations for ongoing tenancies, there are two options:-
1. Send out the prescribed information to the tenants and risk tipping them off that there has been a breach of the TDS, or;
2. Do nothing, remain in breach of the regulations and hope that the tenants have no knowledge of the TDS requirements. The landlord would have to hope that any disputes regarding the deposit are settled amicably.
Which option to take is the choice for the landlord and the particular circumstances of the case, but I would generally prefer option 1. Late compliance does not prevent the tenant from making a Claim against the landlord, but at least it could be proved that as soon as the landlord was aware that some prescribed information had not been sent out, they sent it out in an effort to comply with the TDS requirements. In these kinds of Claims, the Judges have discretion to award a minimum of the return of the deposit and a maximum of up to three times the amount of the deposit to the tenant. If the landlord can show that they have done everything they could to comply (even if that compliance was late) I would suspect a Judge would exercise their discretion in the landlord’s favour and opt for a lower value award.
It is worth repeating that, a Section 21 Notice to Quit cannot be served until the correct prescribed information has been sent out. Well-informed tenants can avoid or delay eviction this way.
In my opinion, the TDS requirements place too high a burden on regular private landlords that are trying to do a good job. If established letting agents are having trouble providing all of the correct prescribed information, I cannot see what chance a regular landlord has. I predict that the prescribed information requirement will be relaxed in the future and the pendulum will swing back towards the landlord. Until then, all landlords should make sure that the below information is sent out to all tenants within 30 days of receiving a deposit.
Housing (Tenancy Deposit) (Prescribed Information) Order 2007/797
2.— Prescribed information relating to tenancy deposits
(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—
(a) the name, address, telephone number, e-mail address and any fax number of the scheme administrator 1 of the authorised tenancy deposit scheme 2 applying to the deposit;
(b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act 3;
(c) the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy 4 (“the tenancy”);
(d) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;
(e) the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
(f) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and
(g) the following information in connection with the tenancy in respect of which the deposit has been paid—
(i) the amount of the deposit paid;
(ii) the address of the property to which the tenancy relates;
(iii) the name, address, telephone number, and any e-mail address or fax number of the landlord;
(iv) the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;
(v) the name, address, telephone number and any e-mail address or fax number of any relevant person;
(vi) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and
(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.