Can landlords give tenants the prescribed information before a deposit has been paid?

As a landlord, you may think you are being proactive when carrying out certain tasks quickly and early – but this doesn’t always leave you in line with the law. For example, when should you provide prescribed information? Can landlords give tenants the prescribed information before the deposit has been paid?

In the case of Siddeeq v Alaian, the court was asked whether providing the prescribed information before receiving the deposit complied with the legal requirements under the Housing Act 2004.

The dispute arose when the tenant challenged the validity of a Section 21 notice served by the landlord due to the prescribed information being provided prior to the deposit being taken. Their defence to the notice was that it was given too early and was therefore non-compliant.

Timeline:

• 12 November 2021 – The landlord and tenant signed an assured shorthold tenancy agreement. The tenancy agreement included the deposit information and enclosed the deposit scheme leaflet.
• 13 November 2021 – The tenant paid the deposit to the landlord.
• 19 November 2021 – The deposit was protected with an authorised scheme, and a deposit protection certificate was issued (not signed by either party).
• 3 November 2022 – The landlord served a Section 21 notice seeking possession of the property.

On appeal, the judge upheld the tenant’s defence, concluding that prescribed information had not been provided, rendering the Section 21 notice invalid.

Article 2 of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 sets out what must be included within the prescribed information, which includes the amount of the deposit paid. If no deposit had been paid, this couldn’t be complied with.

It was found that the deposit information provided before it was paid could not be ‘prescribed information’. This is because – seeing as the deposit had not yet been paid – it could not be accurately certified as being correct. What if the tenant paid more or less than requested?

Additionally, Section 213(6) of the Housing Act 2004 specifically states that the period to provide the information starts once the deposit has been paid, and so it cannot be compliantly provided beforehand.

What can landlords learn from this case about providing the prescribed information?

This case serves as a cautionary tale, even for experienced landlords.

Whilst eager landlords may think it is proactive to provide the prescribed information along with the AST before a deposit has been paid, ensuring compliance with the appropriate timeline is pivotal. The court has made it clear that it should be provided after the deposit has been paid to the landlord.

It should be noted that if you were to serve the prescribed information beyond the 30-day period from the deposit being paid, a valid Section 21 notice could still be served. However, if there is any breach of the deposit requirements, such as the prescribed information being served late (or not at all), the tenant is likely to have a tenancy deposit claim against the landlord.

If you would like further advice on the above, please contact our property litigation specialists.

As specialists in landlord and tenant matters, our property disputes team keep up to date on all changes to the law, ensuring that we give the best advice and can help to resolve any issues landlords have.