Tenancy Deposit Prescribed Information

Piggy three ways

As these regulations are becoming increasingly important (some tenants are trawling through the prescribed information form served on them looking for errors when they are served with a section 21 notice!) we set out some guidance here.

What is the Prescribed Information?

It is information which needs to be given to your tenant.  It is essential that this is done - do not ignore it considering it to be bureaucratic nonsense!

The prescribed information is as important as the protection of the deposit

If the deposit money is paid to the agent, then the agent is responsible for providing it as well as the landlord. 

Landlords - note that if you use an agent, you are still liable under the regulations, even if your agent was supposed to deal with this for you.  Your agent will be liable under the regulations as well as you - not instead of you.

It is the information which is prescribed, not the form - there is as yet no prescribed form. 

The prescribed information requirements are set out in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007/797 s.2 (1) (a) – (g). 

You will normally be provided with a leaflet by your tenancy deposit scheme which contains much of the information required by the regulations.  The rest of the information will need to be provided by you separately.

Letting Agents

Often the letting agent will deal with the deposit and also arrange for the service of the prescribed information.  The rules now allow for the agent's details to be given on the form instead of landlords details where the agent is dealing with the deposit (this was an amendment under s30 of the Deregulation Act 2015). 

Note that if the agents fail to deal with this properly, you as the landlord will still be liable for breach of the regulations even though it was not your fault.  So you need to make sure that your agents are doing all that they should.

 

Where can you find the forms?

>> If you protect your deposit with the Deposit Protection Service

You will find a template notice you can use on their website in the Landlords Documents section.  You will need the form and their terms and conditions.

>> If you protect your deposits with TDS or Deposit Guard,

You will have been provided with a form of notice to use and a leaflet to serve on the tenants with it.  You should use the information provided by the scheme rather than any other.

>> If you protect your deposit with My Deposits

So far as I am aware, they do not provide a form for you to use, but they do have detailed information on their website. 

You can use my form below.  You will also need to attach the My Deposits form for tenants and the deposit protection certificate, both of which should be provided to you by My Deposits. 
 

The Landlord Law Form

This form has been carefully drafted with reference to the relevant regulations and should therefore protect you if you use it.  However, if you protect with DPS or TDS / Deposit Guard you should use their form rather than mine.

You will find the Landlord Law form >> here

Please read the guidance notes before using the form.

 

When do you need to serve it?

The regulations provide for you to serve the prescribed information within 30 days of receipt of the deposit money.

Note that problems in the law thrown up by the Superstrike case have now been rectified by the Deregulation Act 2015.  These are now the rules regarding existing tenancies with deposits:

  • Any deposits taken before April 2007 where the tenancy had become periodic after that date, must be protected and the prescribed information must be served within 90 days of the coming into force of the Deregulation Act on 26 March 2015 (ie on or before 23 June 2015). At which point the deposit will be treated as if it had always been protected.
  • Any deposits taken after April 2007 that were protected with the prescribed information having been served at some stage during the initial tenancy, will be treated as if the prescribed information had been served on every renewal or whenever a statutory periodic tenancy arose.
  • Any deposits taken before April 2007 which became periodic before that date must be protected or the money returned to the tenant (or the person who paid it) before a s21 notice can be served. However as they have done nothing wrong by not protecting earlier, Landlords will not be liable for any financial penalty for non protection.

In short - if you want to use section 21 - the deposit must have been protected before your notice is served.

Further details on the regulations and service

The requirements of (a)-(f) are generally covered by the standard paperwork supplied by your scheme provided you fill out the necessary information correctly (e.g. the parties names, etc).

(g) is more difficult and reads:

(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.

Make sure your form has all this information.

Your authority to make deductions - finally, note that sub paragraph (g)(vi) requires you to give the clause in their tenancy agreement which sets out the circumstances under which you can deduct money from the deposit.  This is essential as without such a clause you are not entitled to make any deductions at all!

The certificate requirement is troubling as landlords tend to deal with the prescribed information requirement by simply posting it to the tenant.

Our advice is that you should either

  • allow the tenant to inspect the prescribed information before signing to certify compliance (this is best done if you give them the prescribed information form when they sign the tenancy agreement at your office), or (if this is not possible for any reason)
  • send the tenant the information with a covering letter offering them the opportunity to return a signed copy if they wish or to identify any errors. Then later (but within the 30 day requirement) send a signed letter saying the tenant has the opportunity required by 2 (1) (g) (vii) (bb).

Suggested text for covering letters:

1. When you first send the prescribed information form to the tenants

Dear [name]

I enclose by way of service upon you the prescribed information relating to your deposit together with a copy.    Please check it carefully. 

If there are any errors, please contact me and let me know.  Otherwise please sign and return the copy form to me where indicated, in the enclosed stamped addressed envelope.

Yours, etc

2. If the tenants do not  respond to the first letter

Note that you may at some stage be required to prove that the tenants have been served the prescribed information.  So if they fail to respond to the first letter you may want to consider serving the second letter by hand with an independent witness. 

Or, if they have confirmed receipt orally, e.g. in a telephone call, make sure you have a written note of the date and time of the call and what was said.

Here is some suggested wording for the second letter:

Dear [name]

I refer to my earlier letter dated [date] and am concerned that I have not heard from you. 

I enclose a further copy of the prescribed information form and a further copy for you to sign and return to me. 

Note that this letter is sent to you pursuant to section 2 (1) (g) (vii) (bb) of the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

Yours etc

 

You may want to consider completing a certificate of service for the Prescribed Information for your properties and keeping this with the tenancy paperwork and then, if there ever is an issue, you will be well prepared to prove service.

There is a description of how to find and complete a certificate of service for possession notices >> here.
Completing a certificate of service for service of you prescribed information will be very similar.

Consequences of not complying with the regulations

1. You will not be able to serve a valid section 21 notice if the prescribed information (all the prescribed information been given to the tenant.  Although the regulations indicate that this can be done out of time, note that Judges are treating the regulations as requiring the deposit money to be refunded before a valid section 21 notice can be served.  Landlords who find that they have not served the complete prescribed information on tenants are therefore advised to do this before serving their notice.

2. Your tenant will be able to apply to the court for an order that you pay a penalty of between one and three times the deposit sum (the precise amount is in the discretion of the Judge). 

Unfortunately, if you fail to serve the information on the tenant within the 30 days there is no way that this can be rectified and you will have no defence to any claim brought by the tenant.  The only question will be the amount of the penalty ordered by the Judge.

Non AST lets

If the tenancy is not an assured shorthold tenancy the deposit regulations do not apply.  So this means common law tenancies and also lets to lodgers.  You can find out which tenancy type you have by following the >> tenancy trail.

Note however that if you have a common law tenancy which may one day convert to an AST - for example, if you are a resident landlord but are considering moving out to live elsewhere, then you may want to consider protecting the deposit anyway, so you will not be out of time at the time the tenancy converts.  

 

 

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