Erratum : Spencer v Taylor and Superstrike v Rodrigues revisited, revisited

Our blog dated 7 August 2014 contained a rather important typo which was drawn to our attention and corrected within one hour of the original blog going up.

It has now come to light that subscribers to the blog were not alerted to the correction. The corrected version is repeated below. We hope that it was obvious from the tone of the article that it was a typo and we are very grateful to our original subscriber who queried the point. We apologise for any confusion caused.

So here is the correct version:

Spencer v Taylor [ 2013] EWCA Civ 1600

The Court of Appeal ruled that when serving notice on a tenant in a statutory periodic tenancy, provided there was once an initial fixed term, Landlords may serve valid notice by giving not less than two months’ written notice i.e according to the provisions of section 21 (1)(b) of the Housing Act 1988. There is no need for the notice to expire at the end of a period of the tenancy; even if the period is six months, the Landlord need only serve two months’ notice in writing.

We blogged on this here.

So why are we bringing it up again? Our original blog advised caution in moving over to the practice of serving notices on statutory periodic tenants under s21 (1)(b) on the basis that the tenant might appeal, and that the decision might take time to trickle down to the lower courts. Indeed the tenant did apply to appeal the matter to the Supreme Court but has been refused leave to appeal, which means that the Court of Appeal decision continues to be good law unless and until a new case on the same issue reaches the Supreme Court.

Helpline subscribers can access a notice that follows the ruling in Spencer v Taylor from our document vault to use in statutory periodic tenancies.

Where there was never an initial fixed term, or where a fixed term is expressed to continue on a contractual periodic basis, the provisions of section 21 (4)(a) should be followed.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 (14 June 2013)

When a fixed term assured shorthold tenancy ends, a statutory periodic tenancy arises. That tenancy is a new tenancy for the purposes of the deposit protection legislation ( ss212 to 215 Housing Act 2004 as amended by the Localism Act 2011). At the end of the fixed term the Landlord/Agent is deemed notionally to have returned the deposit and then re-received it. This means that the requirements to comply with the deposit protection rules kick in once more – you need to protect the deposit in a government authorised scheme and serve the appropriate prescribed information.

We blogged on this here

So why are we bringing this up again? Because although our advice has always been to re-serve the prescribed information, we did not know how the courts were going to apply Superstrike. We have had brought to our attention the case of Gardner v McCusker. In this county court case the Landlord had failed to (re)serve the prescribed information when the tenant’s fixed term ended and a statutory periodic tenancy arose and then served a section 21 notice. The court found that the landlord had not complied with the deposit protection requirements and that the section 21 notice was invalid. This is one county court decision. It is not binding on other courts. However, why risk the point being raised and exposing yourself to a penalty and failed possession proceedings? There are plans afoot to amend the deposit protection legislation with amendments to the Deregulation Bill which is currently going through Parliament. A court decision might come along which says that the prescribed information served in the fixed term satisfies the requirement to serve when a statutory periodic tenancy arises. Until then, just get into the habit of serving new prescribed information whenever an SPT arises and save yourself some trouble later.

Filed under: England & Wales

Spencer v Taylor and Superstrike v Rodrigues revisited.

Spencer v Taylor [ 2013] EWCA Civ 1600

The Court of Appeal ruled that when serving notice on a tenant in a statutory periodic tenancy, provided there was once an initial fixed term, Landlords may serve valid notice by giving not less than two months’ written notice i.e according to the provisions of section 21 (1)(b) of the Housing Act 1988. There is no need for the notice to expire at the end of a period of the tenancy; even if the period is six months, the Landlord need only serve two months’ notice in writing.

We blogged on this here.

So why are we bringing it up again? Our original blog advised caution in moving over to the practice of serving notices on statutory periodic tenants under s21 (1)(b) on the basis that the tenant might appeal, and that the decision might take time to trickle down to the lower courts. Indeed the tenant did apply to appeal the matter to the Supreme Court but has been refused leave to appeal, which means that the Court of Appeal decision continues to be good law unless and until a new case on the same issue reaches the Supreme Court.

Helpline subscribers can access a notice that follows the ruling in Spencer v Taylor from our document vault to use in statutory periodic tenancies.

Where there was never an initial fixed term, or where a fixed term is expressed to continue on a contractual periodic basis, the provisions of section 21 (4)(a) should be followed.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 (14 June 2013)

When a fixed term assured shorthold tenancy ends, a statutory periodic tenancy arises. That tenancy is a new tenancy for the purposes of the deposit protection legislation ( ss212 to 215 Housing Act 2004 as amended by the Localism Act 2011). At the end of the fixed term the Landlord/Agent is deemed notionally to have returned the deposit and then re-received it. This means that the requirements to comply with the deposit protection rules kick in once more – you need to protect the deposit in a government authorised scheme and serve the appropriate prescribed information.

We blogged on this here

So why are we bringing this up again? Because although our advice has always been to re-serve the prescribed information, we did not know how the courts were going to apply Superstrike. We have had brought to our attention the case of Gardner v McCusker. In this county court case the Landlord had failed to (re)serve the prescribed information when the tenant’s fixed term ended and a statutory periodic tenancy arose and then served a section 21 notice. The court found that the landlord had not complied with the deposit protection requirements and that the section 21 notice was invalid. One swallow does not make a summer. This is one county court decision. It is not binding on other courts. However, why risk the point being raised and exposing yourself to a penalty and failed possession proceedings? There are plans afoot to amend the deposit protection legislation with amendments to the Deregulation Bill which is currently going through Parliament. A court decision might come along which says that the prescribed information served in the fixed term satisfies the requirement to serve when a statutory periodic tenancy arises. Until then, just get into the habit of serving new prescribed information whenever an SPT arises and save yourself some trouble later.

Filed under: England & Wales, deposits, Housing Act 1988, Housing Act 2004, legislation, possession

European Standards for Safety of Internal Window Blinds

The British Standards Institution published new standards in February 2014 based upon the European Standards on safety requirements to address certain risks posed to children by internal blinds, corded window coverings and safety devices. These Regulations apply to all businesses but not to a consumer therefore any installer will be subject to the Regulations as will any business entity. The Regulations run to forty pages but a short summary is shown below.

1 Businesses must sell a safe product.

2. The Standards affect any device used for internal blinds or curtain tracks including but not limited to, vertical blinds, roller blinds, Roman blinds and plantation shutters.

3. The Standards apply to blinds which have cords or chains fitted with a hazardous loop that could create a hazard in premises where there are children aged between 0 and 42 months who are likely to have access
or be present.

4. All new blinds or curtain tracks which are fitted by a professional must pass the new standard that specifies safety requirements and test methods for safety devices to improve safety and help prevent accidents. These safety devices can be fitted during manufacture or where blinds or curtain tracks have already been installed be retro-fitted to window blinds and tracks.

Practical Issues

If a blind or curtain track is purchased new then it should contain a label regarding safety and compliance with the Standard together with a safety device installed to prevent strangulation of a young child by a dangerous loop made of cord material or ball bearings. When choosing new window blinds in houses or public buildings such as offices it is strongly recommended that the chosen blind is safe by design which means it does not use cords or chains to operate it; or if they are fitted then the cords or chains are either concealed or tension cords and chains. However Agents should check existing properties where blinds or tracks with cords are already fitted and if there is a long or loose loop arrange the fitting of a cleat or snap connector retrospectively to these items as a matter of urgency.

If an accident did occur the Trading Standards could take action for failure by an Agent to have such devices fitted.

Filed under: England & Wales, guidance