Trinity Housing Barrister Summary of Lowe v Charterhouse [2022]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Lowe v Charterhouse [2022] EW Misc 8 (CC).

Mr Lowe brought a claim under s.214 Housing Act 2004 seeking approximately £120,000 on the basis of his landlord’s alleged failure to provide the statutorily prescribed information relating to his deposit over a sequence of ten tenancies (over the course of 12 years).

Facts

Mr Lowe is an Assured Shorthold Tenant and the defendant, ‘Charterhouse’, is his private landlord. In December 2009, Mr Lowe paid a month’s rent in advance and a tenancy deposit of £3,300. In January 2010, he and Charterhouse countersigned a written tenancy agreement for a one-year fixed term, rolling over on a monthly basis at the end of the fixed term. His deposit was protected under the approved Tenancy Deposit Scheme in 2010 and remained protected. Mr Lowe resided in the property from January 2010.

By virtue of a number of statutory periodic tenancies and various memoranda signed, Mr Lowe occupied the property under eight separate tenancies between January 2010 and August 2015. Thereafter there was a factual dispute as the basis of his continued occupation, in particular whether a further two tenancies arose. An additional factual dispute concerned the exact deposit sum paid.

Charterhouse, amongst other matters, substantively denied any material lack of compliance in relation to the provision of the statutorily prescribed information and also raised a preliminary matter of limitation in respect to any breaches earlier than six years prior to issue.

Decision

On the preliminary issue of limitation, it was common ground that this was a statutory claim and that for the purposes of the Limitation Act 1980, it was an “action upon a speciality” (within the meaning of s.8 LA 1980). Accordingly, the limitation period was 12 years unless s.9 LA 1980 applied. Mr Lowe contended that the claim did not fall within s.9 as what was sought was money never paid out by him, accordingly, there could be no “recovery” within the meaning of s.9 LA 1980. HHJ Luba KC found that the correct analysis is that the Limitation Act treats "recovery" as including the obtaining of money not previously paid, this was also consistent with established authority and commentary [44-45]. Accordingly, such a claim under s.214(4) HA 2004 falls within s.9 LA 1980 [51]. Further, for limitation purposes, HHJ Luba KC considered that time does not start to commence only when compliance has taken place, but rather when the landlord’s time for compliance with the requirements as to the provision of documents has expired [49]. Charterhouse was accordingly successful in barring potential recovery of any monies pre-June 2015.

On the areas of factual dispute including the issue of the amount of deposit monies paid and the Mr Lowe’s case for further two tenancies arising post-2015, HHJ Luba KC ultimately was not persuaded in the Claimant’s favour [82/165].

On the substantive issue of compliance with the statutory requirements, the issue first centred on the provision of the relevant information in 2010. The judgment notes the statutory requirement with respect to deposits is that the relevant material is “given to the tenant”. Accordingly, a landlord or its agent cannot make good compliance by simply showing merely that something was sent or posted [97]. Section 7 of the Interpretation Act 1978 does not apply as there is nothing in the relevant provision of the Housing Act 2004 referencing posting or authorising or requiring service by way of post. [105]. Accordingly, it had to be shown that the information was in fact given to Mr Lowe in that they came into his possession [106]. Ultimately, HHJ Luba KC was so satisfied.

Thereafter, consideration turned to whether the documents received gave Mr Lowe the necessary prescribed information in accordance with s.213(6) HA 2004. The main issue was that Charterhouse and its agent failed to give a signed certificate in compliance with Article 2(1)(g)(vii) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (SI No 797). HHJ Luba KC was satisfied however the letter and its enclosures found to be received by Mr Lowe in 2010 either satisfied the statutory requirements by the route of the form of a certificate being “substantially to the same effect” or by the application of a “sensible, purposive, and constructive approach” to the interpretation of the prescriptive statutory requirements [130].

As to whether Charterhouse could rely upon that original information provided in 2010 in order to satisfy its statutory obligations applicable to the eight tenancies in August 2015 onwards, or whether it ought to have provided the information afresh, HHJ Luba KC considered that s.215B HA 2004 (as implemented by the Deregulation Act 2015) can operate constructively such that that the "original tenancy" described by s.215B(1)(a) HA 2004 can apply to an original tenancy that was at first non-assured and became an assured shorthold and/or to the first statutory periodic assured shorthold tenancy that springs from it [146]. Accordingly, Charthouse could place reliance on the saving mechanism introduced by s.215B HA 2004, the purpose of which was to avoid the wasteful exercise of repeatedly requiring landlords to provide that material which had already been provided to continuing tenants of the same accommodation [142].

Overall, HHJ Luba KC held that Charterhouse met its statutory obligations in relation to the protection of the deposit and provision of information relating to it, accordingly the claim was dismissed.