On 14 June 2013 the Court of Appeal delivered judg-ment in Superstrike Ltd v Rodrigues  EWCA Civ 669. Essentially there were two issues: (1) did a statuto-ry periodic tenancy constitute a new tenancy; and (2) had the deposit been ‘received’ by the landlord in re-spect of that statutory periodic tenancy in the meaning of s213 Housing Act 2004 ("the 2004 Act)?
It was held that where a deposit was taken on an as-sured shorthold tenancy ("AST") before 6 April 2007 (when the 2004 Act as originally enacted came into force) but became a statutory periodic tenancy after 6 April 2007, the deposit was to be dealt with under the 2004 Act and a failure to do so meant the penalties for non-compliance applied.
Mr Rodrigues took an AST of the dwelling from Super-strike Limited dated 8 January 2007 for a fixed term of one year less one day, at a monthly rent of £606.66. A deposit of the same amount was also paid. At the expiry of the fixed term, by the effect of s5 of the Housing Act 1988 ("the 1988 Act"), he became entitled to a statutory periodic tenancy. No new tenancy agreement was en-tered into and no change was made to the rent then or thereafter. The deposit which had been paid in January 2007 continued to be held by Superstrike without any reference being made to it at that time by either landlord or tenant.
On 22 June 2011 Superstrike served a notice requiring possession under s21 of the 1988 Act. It applied to the county court for possession under the accelerated pro-cedure. A possession order was made on 8 May 2012, but was set aside by DDJ Whiteley on 26 June 2012 on the grounds of non-compliance with the provisions relat-ing to tenants' deposits. Superstrike’s appeal was al-lowed by HHJ Winstanley. Mr Rodrigues appealed to the Court of Appeal.
The Court (Lloyd LJ giving the judgment) held it was clear from the 1988 Act that what happens at the end of the fixed period tenancy is the creation of a new and distinct statutory tenancy, as was held in relation to a comparable provision in the 1988 Act in N & D (London) Ltd v Gadson (1991) 24 HLR 64.
The Court agreed with Mr Rodrigues’ arguments that even though no "deposit" money changed hands at the time the statutory periodic tenancy arose, and no book entries were made at that stage, the landlord had to be treated as having received the amount of the deposit, referable to the new tenancy. To hold it otherwise would make no sense for the landlord as the deposit would only have been held as security for obligations and liabilities under the original fixed period tenancy. Therefore if the landlord is treated as holding the deposit in relation to the new tenancy, it must be treated as having received it for that pur-pose with the consequences of ss213-215 of the 2004 Act applying.
The consequences of the judgment were pointed out by Superstrike as once the fixed term tenancy had expired, with the tenant remaining in possession, the landlord had to make arrangements for the deposit to be held in accordance with an authorised scheme if he wished to be in a position to serve a s21 notice. They argued such arrangements ought not to be im-posed in such circumstances, or that it should be seen as unnecessary or pointless. The Court howev-er disagreed.
The reality is that deposits taken at the start of a fixed term tenancy are often used for a statutory pe-riodic or follow-on new fixed term tenancy. This re-cent decision means if a deposit is ‘retained’ from one tenancy to the next, and ‘received’ in respect of the new tenancy, there is potentially an obligation to provide the prescribed information again.
Whilst the actual information may be unchanged and has arguably already been served ahead of the new tenancy, in my opinion it would be prudent to serve it again when the deposit is ‘received’ in respect of the new tenancy. This way a notice under s21 of the 1988 Act would be valid. If the prescribed information is not served within 30 days (that is, since 6 April 2012), no s21 notice is valid until it is served (and a failure to serve within 30 days opens up a potential s214 2004 Act claim).
If more administration is needed by (re)serving the pre-scribed information, I foresee set-up/administrative costs landlords’ agents often charge being again in-creased . This consequence would be unfortunate. but in the words of Lloyd LJ, "unfortunately, several points under this legislation turned out not to be as may have been expected or intended".