October 2013 – Landlords – take care! Tenancy Deposit Scheme Regulations have teeth

Author: Mitchells Roberton
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Landlords – take care!

&

Tenants – know your rights!

Tenancy Deposit Scheme Regulations have teeth

  • The Court Department here has recently acted on behalf of a tenant in a case where the landlord had not complied with their duties under the Tenancy Deposit Scheme Regulations. In a case where the sheriff is satisfied that the landlord has failed to do so the sheriff must “order the landlord to pay the tenant an amount not exceeding three times the amount of the tenancy deposit”.
  • The phrase here is “not exceeding three times the amount of the tenancy deposit”. In the case with which our Court Department was concerned an amount three times the deposit was £4,927.50. It might have been expected that the sheriff would have scaled that down a bit linking it to the actual loss suffered by the tenant. But no: the sanction imposed was the maximum £4,927.50.
  • It may be that the sheriff’s approach was informed by the fact that the relevant Part of the Regulations is headed “Sanctions” and the purpose of a sanction is not primarily to compensate for loss. It is more for the penalty aspect of the sanction to function as joint “carrot and stick” i.e. to incentivise landlords to comply with the Regulations at the same time as discouraging landlords from ignoring the Regulations.
  • Arguably, therefore, in such a case, the onus is on the landlord to show why the maximum penalty should not be imposed; rather than the onus being on the tenant to show why the maximum should be imposed.
  • Something more is said about this particular aspect of the Regulations below. But to put that in context there is given first an overview of key aspects of the Regulations.

Overview of the Tenancy Deposit Schemes (Scotland) Regulations 2011

(“the Regulations”)

 

Background to the Regulations

 

  • Usually, when a private sector tenant rents a house or flat they have to pay a deposit which the landlord himself keeps until the tenancy comes to end and then gives the deposit back less any deductions due in terms of the tenancy agreement (for example where the tenant has broken any of the contents).
  • There were concerns about the ways this worked. For example: it might not be clear what circumstances justified the landlord’s keeping the deposit; there might be delays in returning the deposit to the tenant; there might be difficulties in getting the landlord to account to the tenant for deductions made from the deposit; and, if the landlord went bust, the deposit would not be repayable to the tenant.
  • The Regulations were aimed at resolving those sorts of problems.

Main aspects of the Regulations

 

  • Instead of landlords keeping a deposit themselves landlords are now required (a) to pay deposits into an independent “approved scheme”, and (b) provide the tenant with specific information about the tenancy, the deposit and the scheme that will be protecting it.
  • The information to be provided by the landlord is:

The landlord’s registration status (most landlords will be required to be registered as such with the local authority);

Confirmation of receipt of the deposit;

Confirmation of the date it was paid to an approved scheme;

The name and contact details for the scheme holding the deposit;

The address to which the deposit relates; and

The reasons why part or all of the deposit might be withheld at the end of the tenancy, with reference to the tenancy agreement.

Regulations apply to new – and to existing – tenancies

 

  • It might have been thought that the Regulations would only apply to new tenancies starting after the Regulations came into force. But no: they also to apply to existing tenancies. So any tenancy deposit paid must be paid over to an approved scheme – and the necessary information given to tenants about tenancy deposit schemes – within certain time-scales as follows.

Time-scales for providing information to tenants

 

The dates by which landlords must pay deposits to an approved scheme and provide information to the tenant vary depending on when the deposit was received:

Deposit received prior to 7 March 2011:

 

  • Where the tenancy was renewed by express or implied agreement on or after 2 October 2012 and before 2 April 2013 within 30 working days of renewal
  • In any other case by 15 May 2013

Deposit received on or after 7 March 2011 and before 2 July 2012:

 

  • By 13 November 2012

Deposit received on or after 2 July 2012 and before 2 October 2012:

  • By 13 November 2012

Deposit received on or after 2 October 2012:

  • Within 30 working days of the beginning of the tenancy.

Failure to comply with the Regulations

 

“The sheriff will have discretion to take the individual circumstances of each application into account when deciding the amount of financial penalty that should apply.”

 

  • Experience here suggests that the norm may be for sheriffs to impose the maximum penalty. That seems to be reflected by Shelter Scotland which provides an example letter for tenants to send to landlords where the landlord has failed to comply with their duties under the Regulations. This example letter includes the following paragraph:

“If a landlord doesn’t register a deposit, then a tenant can apply to the sheriff court and the court can order the landlord to pay the tenant up to three times the amount of the deposit. A tenant can do this up to three months after the tenancy has ended. This has recently been tested in the Sheriff court in Edinburgh and the Sheriff found in favour of the tenant and made the landlord pay £3450 plus expenses to the tenant.”

 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neillypdn@mitchells-roberton.co.uk

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