A case recently reported in the Legal Action Magazine shows how silly things can get, if the court paperwork is not completed correctly by the claimant or his solicitors.
Mr O’Brien granted Mr Hill an assured shorthold tenancy from 9 June 2008. No deposit had been paid to him. On 12 June he served a section 21 notice. The deposit was not paid to him until 2 July, and he protected it with the DPS on 6 July.
But when he subsequently issued proceedings for possession, using the accelerated procedure, relying on the notice served on 12 June, the claim was struck out. On the basis that he had not complied with the tenancy deposit regulations.
The Judge (District Judge Silverman at Edmuntion County Court) had given Mr O’Brien permission to apply to restore the claim, and this he duly did, arguing that the s21 must be valid as it was impossible for him to protect a deposit he had not received yet. DJ Silverman accepted the argument and the possession order was made.
(O’Brien v. Hill, Edmuncton County Court, 22 September 2009, DJ Silverman)
Note: 18 January 2010 – I have just been contacted by DJ Silverman regarding this case. He tells me that at the time he made the order, it appeared, from the paperwork before him, as if the deposit had been paid but not protected, at the time the section 21 notice was served. Which is why the claim was dismissed. Subsequently the landlord’s solicitors produced evidence to show that the deposit had not in fact been paid at the date of service of the notice. Upon learing the true situation, DJ Silverman made the order for possession without the need for a hearing.
This goes to show how important it is to be careful in drafting applications for possession, to get the true facts before the Judge.
Apologies to DJ Silverman for any inadvertent misrepresentation of the facts of the case in the earlier version of this post.
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To be fair to the judge the possession claim would not necessarily have stated when the deposit was actually paid, only when it was protected from. For a DJ doing the paperwork this would have appeared a perfectly proper course of action at first look – in fact, credit is due for correcting the error when made aware of the facts.
Seems a little odd that the landlord would allow a tenant to take possession of the property without taking the deposit first don’t you think ?
Yes, I suppose that is right. It goes to show that when drafting proceedings for possession these potential misunderstandings should be made clear in the paperwork.
Apparently the deposit was paid by the local authority, so this must be why the landlord let the tenant in before it had arrived.
and one assumes that the local authority were provided with the prescribed information as well as the tenant – not that it would have made any difference in this case but its a small point that is often missed :)