Superstrike, the aftermath | Discuss
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1:28 pm
12/10/2011
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QuoteThe judges in Superstrike observed that a Statutory Periodic (SP) tenancy was not a continuation of the initial AST but a new tenancy in its own right. This is not part of the judgement merely background information based on the 1988 Housing act.
A landlord lets a property on a six month AST and does not take a deposit (lets not complicate the issue). A few days later the landlord, in accord with his usual practice, issues a section 21 notice, a notice which he ensures is correct in every detail. The tenant misbehaves and the Landlord decides that he will exercise the section 21 at the end of six months. The miscreant tenant is not pleased and decides not to leave, so the unhappy landlord takes legal action for possession.
At the hearing the tenant claims that at the end of the AST a new tenancy commenced and that the section 21 notice applied to the old tenancy so therefore he had six months from the start of the SP tenancy before the landlord could evict him (using a section 21).
What did the judge decide and why?
I do not know the answer and would appreciate referenced comments.
2:55 pm
12/10/2011
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An SPT is not for 6 months.
It is on a rolling 1 month basis.
So the most this tenant could claim would be a S21 a needed to be issued on the 1 st day of the SPT commencement to enable the LL to apply for a PO 2 months later or rather 2 months and 1 day!
However we all know that a S21 b ; if issued within the AST fixed term period is valid for life if no new AST is completed.
The judge should have thrown out the tenant's defence!!
3:33 pm
30/04/2013
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I am of the opinion that this ruling is not going to have much of an impact when it is finally decided in the Higher Court - To do so would simply put thousands of landlords (and agents) at risk of being fined for not protecting the deposit. Why do I say this?
- Unless you have tenancies that started before the legislation in April 2007 that have since gone periodic this will not effect you. If you have such a tenancy I suggest you protect it toot sweet!
If this is not the case, it will open the floodgates for tenants who are of a mind to become litigants to sue their landlord/agent. If they are allowed to then I would challenge it based on the TDS rules (In my case the DPS) who have stated in the past the deposit does not need re-protecting when going into a SPT.
This needs to be kept in context. Unless you have a tenancy that started pre April 2007 that has subsequently gone periodic, you won't be affected, if you are worried about it then simply do one of 2 things
- Give the deposit back
- Re-protect it if the tenancy has gone into a periodic and your scheme rules state this should happen.
If this case does go in favour of the tenant and the judge rules that the deposit must be re-protected, I imagine there will be a grace period for you to complete this - Maybe 30 days?
All said and done, lets see what happens at the appeal and don't panic Mr Mainwareing!
Mark A Reynolds Pierce & Co Residential Letting Agents http://www.pierceandco.co.uk 01296 20 1234
4:45 pm
12/10/2011
OfflinePaulBarrett said
An SPT is not for 6 months.It is on a rolling 1 month basis.
So the most this tenant could claim would be a S21 a needed to be issued on the 1 st day of the SPT commencement to enable the LL to apply for a PO 2 months later or rather 2 months and 1 day!
However we all know that a S21 b ; if issued within the AST fixed term period is valid for life if no new AST is completed.
The judge should have thrown out the tenant's defence!!
Paul any new tenancy has a minimum life of six months, even a SP tenancy which the 1988 Housing act states is a new tenancy. Whilst I agree that any right thinking judge would throw out the defence we are concerned here with law not justice.
I think that the judge should accept the tenants defence and deny the possession BUT I may be wrong so can someone please produce concrete evidence one way or another?
4:54 pm
12/10/2011
Offlinemarkr said
I am of the opinion that this ruling is not going to have much of an impact when it is finally decided in the Higher Court - To do so would simply put thousands of landlords (and agents) at risk of being fined for not protecting the deposit. Why do I say this?
Markr, my original postulate has absolutely nothing to do with the Superstrike case and is totally unconnected with deposit protection. I merely cited the case because it stated the tenancy position as defined in the 1988 Housing act (see section 27 of the adjudication). The situation described is one of 'Unintended Consequences' merely because something we should all have known has been highlighted.
Clive Dunn may not be panicking but is probably revolving in his sarcophagus. 
5:04 pm
30/04/2013
OfflineDavid
I may be getting confused here, or maybe I am about to learn something new, but where does it state that an SPT is for a minimum of 6 months?
We do an AST for 6 months simply because if it were to go to court for possession the judge can only give possession once the initial 6 months have elapsed? This is why we have 21(4)(a) and 21(4)(b) notices
I am busy this weekend writing a knowledge check for agents so I may be getting word blindness
Mark A Reynolds Pierce & Co Residential Letting Agents http://www.pierceandco.co.uk 01296 20 1234
5:35 pm
12/10/2011
Offlinemarkr said
DavidI may be getting confused here, or maybe I am about to learn something new, but where does it state that an SPT is for a minimum of 6 months?
We do an AST for 6 months simply because if it were to go to court for possession the judge can only give possession once the initial 6 months have elapsed? This is why we have 21(4)(a) and 21(4)(b) notices
I am busy this weekend writing a knowledge check for agents so I may be getting word blindness
I think in researching the minimum tenancy length I may have stumbled across the answer to my own question. The 1988 Housing act states (my emphasis):-
5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy.
(5A) Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies.]
(6) In subsection (5)(b) above, the reference to the original tenancy is—
(a) where the replacement tenancy came into being on the coming to an end of a tenancy which was not a replacement tenancy, to the immediately preceding tenancy, and
(b) where there have been successive replacement tenancies, to the tenancy immediately preceding the first in the succession of replacement tenancies
(7) For the purposes of this section, a replacement tenancy is a tenancy—
(a) which comes into being on the coming to an end of an assured shorthold tenancy, and
(b) under which, on its coming into being—
(i) the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and
(ii) the premises let are the same or substantially the same as those let under the earlier tenancy as at that time.]
So a replacement tenancy would be considered as a continuation of the original tenancy for possession purposes.
Now this raises the question as to why this continuation tenancy should be considered differently for the purposes of deposit protection, assuming that my thoughts on possession are correct?
5:42 pm
12/10/2011
OfflineDavid Price said
PaulBarrett said
An SPT is not for 6 months.It is on a rolling 1 month basis.
So the most this tenant could claim would be a S21 a needed to be issued on the 1 st day of the SPT commencement to enable the LL to apply for a PO 2 months later or rather 2 months and 1 day!
However we all know that a S21 b ; if issued within the AST fixed term period is valid for life if no new AST is completed.
The judge should have thrown out the tenant's defence!!
Paul any new tenancy has a minimum life of six months, even a SP tenancy which the 1988 Housing act states is a new tenancy. Whilst I agree that any right thinking judge would throw out the defence we are concerned here with law not justice.
I think that the judge should accept the tenants defence and deny the possession BUT I may be wrong so can someone please produce concrete evidence one way or another?
Hi David,
As I understand it regarding the tenants right to stay for 6 months, this only applies from the date of initial occupation and that's why standard practice has become the use of min 6 months AST's - to equalise the Landlord and Tenant liabilities. A subsequent AST could be 3 months and the Landlord could claim possession at that point as they have already had the 6 months that they have a right to. I cannot quote you the legislation but this has been advised to me by the RLA in the past.
5:43 pm
30/04/2013
OfflineDavid Price said
markr said
I am of the opinion that this ruling is not going to have much of an impact when it is finally decided in the Higher Court - To do so would simply put thousands of landlords (and agents) at risk of being fined for not protecting the deposit. Why do I say this?Markr, my original postulate has absolutely nothing to do with the Superstrike case and is totally unconnected with deposit protection. I merely cited the case because it stated the tenancy position as defined in the 1988 Housing act (see section 27 of the adjudication). The situation described is one of 'Unintended Consequences' merely because something we should all have known has been highlighted.
Clive Dunn may not be panicking but is probably revolving in his sarcophagus.
I appreciate that David, I was trying to say that it is still undecided - Sorry it is the power of the in-contextual internet (I think I just invented a word to go with the Egyptians 
)
I'm probably still reading this wrong but is this a real case?
Mark A Reynolds Pierce & Co Residential Letting Agents http://www.pierceandco.co.uk 01296 20 1234
5:52 pm
30/04/2013
OfflineDavid Price said
I think in researching the minimum tenancy length I may have stumbled across the answer to my own question. The 1988 Housing act states (my emphasis):-
5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than—
(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and
(b) in the case of a replacement tenancy, six months after the beginning of the original tenancy
So a replacement tenancy would be considered as a continuation of the original tenancy for possession purposes.Now this raises the question as to why this continuation tenancy should be considered differently for the purposes of deposit protection, assuming that my thoughts on possession are correct?
The replacement tenancy can either be a new fixed term or periodic - In the case of a periodic it is a month to month (or week to week) and not a new 6 months. The bit highlighted in red refers to the start date of the initial fixed term
EDIT: Reading this I'm not making much sense so I'm giving it a rest lol! 
Mark A Reynolds Pierce & Co Residential Letting Agents http://www.pierceandco.co.uk 01296 20 1234
5:55 pm
12/10/2011
OfflineDavid,
It seems you found the detail that I did not have and were typing your post as I was typing mine!
You are correct, why is it a continuation for possession and not deposit protection? Well it is according to the DPS but its a new one according to MyDeposits. I think this is something to do with the fact that MyDeposits charge for protection and renewals whereas the DPS do not make a charge. So from MyDeposits point of view it is about making money not whether or not its required by legislation.
The whole thing appears to be a mess at the minute especially with the recent case (Albeit a County Court case so no precedent) where a possession was refused because the Landlords name and home address was not quoted on the prescribed information.
Frankly, no-one knows what to do at the moment in respect of deposits and PI.
6:31 pm
12/10/2011
OfflineSchrödinger's tenancy - its a new one and it isn't
For those not familiar with Schrödinger's cat see
9:37 pm
12/10/2011
Offlineit would seem to me that the average judge does know what he (or she ) is talking about, they make it up as they go along to suit them selves, but that is what a university degree does for you, no common sense ! proud to say i do not have a degree.
11:13 pm
12/06/2012
OfflineIt is exactly Shrodingers cat , now you see it,now you don't -if you don't is it dead or alive?
How do you do that little squigly thing on the O ?
I found this on some MyDeposits paperwork Protecting deposits for Statutory Periodic Tenancies The rules of the three tenancy deposit protection schemes differ so please note that these points only relate to members of my|deposits. A statutory periodic tenancy (SPT) is created when the end date of a fixed term tenancy agreement has been reached and the existing tenant remains in the property on exactly the same terms as the original tenancy agreement (other than an agreement by the parties to increase the rent). For members of my|deposits the deposit does not need to be re-protected on an SPT and you do not need to re-issue the Deposit Protection Certificate or Prescribed Information to your tenant. The deposit protection covers one fixed term AST agreement and if necessary a rolling Statutory Periodic Tenancy - See more at: http://www.landlord-referencin.....nd/#p13913
8:20 am
12/10/2011
OfflinePatricia A said
It is exactly Shrodingers cat , now you see it,now you don't -if you don't is it dead or alive?How do you do that little squigly thing on the O ?
That little squiggly thing is called an umlaut and I usually cheat and copy any text with accents from another web site although all characters and accents are available in the Microsoft office suite of applications.
8:44 am
12/10/2011
Offlinemarkr said
I'm probably still reading this wrong but is this a real case?
Hi Mark, no this is not a real case, a hypothetical case which I devised to try to illustrate the problems and complexities of our rather strange legal system.
As I see it we now have a situation where a tenancy is continuous for the purposes of section 21 eviction but discontinuous for deposit protection purposes. Hence Schrödinger's tenancy. It is of course further complicated by the intertwining of the two functions.
It would seem appropriate to define Schrödinger's tenancy as a tenancy which is simultaneously continuous and discontinuous.
It is only when a case comes before a judge and Schrödinger's conceptual box opened that the continuity is determined.
The 1988 act does not mention protected deposits because they were not even a twinkle in politicians eyes in the eighties. But by analogy with possession rules surely the deposit protection should be interpreted in the same manner, that is the protection should run from the start date of the original tenancy and not require renewal at the end of the fixed period. It will take a test case to open this particular Schrödinger box.
9:55 am
30/04/2013
OfflineMorning David,
David Price saidAs I see it we now have a situation where a tenancy is continuous for the purposes of section 21 eviction but discontinuous for deposit protection purposes.Reading the judgement I think this is a salient point
I think this is what the Superstriker case is/has sought to clarify
The Appeal Court SaidThe Deputy District Judge decided the case in favour of the tenant on a ground which is no longer relied on. Judge Winstanley held in favour of the landlord principally on the basis that the deposit had been paid and received before the legislation came into force and there was nothing in the legislation which indicated that it was to apply to a deposit which had already been paid before the commencement date.
Mark A Reynolds Pierce & Co Residential Letting Agents http://www.pierceandco.co.uk 01296 20 1234
1:02 pm
12/06/2012
OfflineAs I see it we now have a situation where a tenancy is continuous for the purposes of section 21 eviction but discontinuous for deposit protection purposes. Hence Schrödinger's tenancy. It is of course further complicated by the intertwining of the two functions.
I agree absolutely with this comment.
Double standards in law
4:46 pm
16/06/2013
OfflineDavid Price said
Hi Mark, no this is not a real case, a hypothetical case which I devised to try to illustrate the problems and complexities of our rather strange legal system.
As I see it we now have a situation where a tenancy is continuous for the purposes of section 21 eviction but discontinuous for deposit protection purposes. Hence Schrödinger's tenancy. It is of course further complicated by the intertwining of the two functions.
It would seem appropriate to define Schrödinger's tenancy as a tenancy which is simultaneously continuous and discontinuous.
It is only when a case comes before a judge and Schrödinger's conceptual box opened that the continuity is determined.
The 1988 act does not mention protected deposits because they were not even a twinkle in politicians eyes in the eighties. But by analogy with possession rules surely the deposit protection should be interpreted in the same manner, that is the protection should run from the start date of the original tenancy and not require renewal at the end of the fixed period. It will take a test case to open this particular Schrödinger box.
David, I thought we went through this in the first Superstrike thread.
A Statutory Periodic is a new tenancy. However, the 1988 Act makes specific provision that a) this does not give rise to a further fixed term of 6 months (as you have now found) and b) that a s.21 notice served before the end of the fixed term still has effect on the Statutory Periodic. So, the Act places specific conditions on the new tenancy. It does not mean that the tenancy is 'continuous in one way but discontinuous in another'. These are exceptions to the usual rules on new tenancies that are expressly set out in the Act (and for the landlord's benefit). This does not affect deposit rules. In fact, that the Act makes these specific exceptions strengthens the argument that a stat periodic is a new tenancy. If it wasn't, no need to provide for these exceptions.
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