£775 fine for an incorrect postcode!

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As I wrote in my last article, we are beginning to see deposit protection cases enter the Scottish Courts. Ross Fraser & Alison Pease v Andrew Meehan, made it clear that Sheriffs are willing to hand down the maximum penalty of three times the deposit for deliberate breaches of The Tenancy Deposit Schemes (Scotland) Regulations 2011.

Steve Harriott, TDSAnother case regarding deposit protection was heard on 26th August 2013 in the Lothian and East Borders Sheriff Court. Leanne Smith v Kwan Martin Chan concerned a failure by the landlord to supply the tenant with the Prescribed Information required under Regulation 42.

The landlord used a letting agent who posted the Prescribed Information to the tenant using an incorrect postcode (using 4JA rather than 4SA).  At the end of the tenancy the landlord retained the deposit and the tenant claimed that she was not aware of how she could raise a dispute with the tenancy deposit protection scheme.  The Regulations are silent as to the method to be used to inform the tenant about the Prescribed Information.

The Sheriff found that “there may be circumstances where a party can rely on a presumption of the receipt of a communication dispatched in the ordinary course of business…” but in this case an incorrect postcode had been used and the Sheriff found that this presumption could not be relied on in this case.

As a result the Court awarded the tenants a penalty of £775, equivalent to the value of the deposit.

Implications

The case shows the importance of making sure that landlords in Scotland have some way of recording that the tenant has actually received the Prescribed Information (either by a recorded delivery receipt or perhaps by asking them to sign the documentation).  In England and Wales there is a requirement for the landlord to certify that the Prescribed Information provided is accurate and that the landlord has also given 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.  In Northern Ireland the same requirement on the landlord to certify the information is correct and give the tenant the opportunity to sign it applies.
We will continue to monitor further deposit protection court cases in Scotland and Northern Ireland.

Steve Harriott
Chief Executive
The Dispute Service

 


Posted by Steve Harriott, CEO on 10 September 2013

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