Deposits, possession claims and corporate landlords
The Court of Appeal has handed down an important ruling concerning the manner in which documents required to be given to a residential tenant are to be authenticated. Justin Bates and Tom Morris examine the ruling.
The Housing Act 1988 governs security of tenure in respect of assured tenancies. By s.8, 1988 Act, the court may not “entertain proceedings for possession” unless the landlord has served a notice in the prescribed form (or one substantially to the same effect) or the court has dispensed with the need for such a notice. The prescribed notice requires that it be signed by the landlord or someone acting on his behalf: see Assured Tenancy and Agricultural Occupancies (Forms) Regulations 2015, S.I. 2015/620.
Where a deposit is paid in respect of an assured shorthold tenancy, the landlord (or any person acting on his behalf – s.212(9), Housing Act 2004) must arrange for it to be protected in accordance with an authorised scheme (s.213(1)). The landlord must also give the tenant prescribed information (e.g. the value of the deposit; the contact details for the deposit scheme) (ss.213(5)-(6); Housing (Tenancy Deposits) (Prescribed Information) Order 2007, SI 2007/797). He must also provide a certificate, signed by the landlord, confirming the accuracy of the prescribed information (ibid). As with a notice under s.8, 1988 Act, the information and certificate is valid if it “substantially to the same effect” as the prescribed form (s.213(6)). A failure to provide the prescribed information or confirmatory certificate may result in the tenant obtaining an order that the landlord pays damages in a sum not less than the deposit paid and not more than three times the amount of the deposit (s.214(4)).
A company is taken to have executed a document if it either: (i) affixes its common seal; (ii) signs by two authorised signatories; or, (iii) signs by director of the company in the presence of a witness who attests the signature: Companies Act 2006, s.44.
In Cooke v Northwood (Solihull) Ltd [2022] EWCA Civ 40 (Lewison, Newey, Snowden LJJ) Ms Cooke was the assured shorthold tenant of Northwood (Solihull) Ltd. She paid a deposit and was given the prescribed information, including a certificate signed by a director of the landlord company. Rent arrears subsequently accrued and the landlord served a notice seeking possession which was signed by one of its employees. Possession proceedings were issued. Ms Cooke defended those proceedings and contended that the only way in which a corporate landlord could sign the notice was in accordance with s.44, Companies Act 2006, which had not been done in this case. She also issued a counter-claim for damages for non-compliance with the tenancy deposit provisions, contending that the confirmatory certificate was required to be signed in accordance with s.44, 2006 Act, which, again, it had not been.
The Circuit Judge rejected her argument on the s.8 notice but accepted it as regards the confirmatory certificate. That decision was upheld by the High Court ([2020] EWHC 3538 (QB)): the s.8 notice was not a document of such formality as to engage s.44 whereas the confirmatory certificate was. Both parties appealed to the Court of Appeal.
The Court of Appeal has held that there was no requirement for either the notice seeking possession or the confirmatory certificate to be signed in accordance with s.44. What mattered in each case was that the signatory was by a person who had the authority to sign on behalf of the landlord; both the director and the employee were authorised and the notice and certificate were valid. If that was wrong then each the notice and certificate were substantially to the same effect as they each contained all the factual information required by the statutory schemes.
Justin Bates and Tom Morris are barristers at Landmark Chambers. They represented the landlord, instructed by David Smith and Neli Borisova of JMW Solicitors, none of whom acted for the landlord in the county court or High Court.
