On 20th December 2020 the Judgment was handed down in the High Court Appeal Case of Northwood Solihull Ltd v Fearn & Ors (2020) EWHC 3538 (QB).

There were two appeals to be dealt with by the Judge which are extremely relevant to any Private Landlord of residential premises and any Property or Letting Agent acting on their behalf. In this case, the Landlord was a Company, and therefore subject to statutory requirements arising from the Companies Act 2006.

If the Landlord is a Company, then:

1. A Notice Seeking Possession served pursuant to s8 Housing Act 1988 (as amended) (“s8 Notice”) can be signed by any person authorised to do so by the Landlord.

2. The Tenancy Deposit Prescribed Information Confirmation Certificate (if a deposit is paid) must be signed in accordance with s44 Companies Act 2006 – either signed by two Directors or a Director and Company Secretary, or if a sole Director then signed by the Director plus a witness.

At County Court level in the possession claim, the Judge held that s44 Companies Act 2006 did not apply to the s8 Notice, but that it did apply to the Tenancy Deposit Prescribed Information Confirmation Certificate (“a Confirmatory Certificate”).

A possession order was granted to the Landlord, however the Landlord was ordered to pay penalties to the Tenants in accordance with s214(4) Housing Act 2004 – the Tenancy Deposit rules had not been complied with due to the failure to sign a Confirmatory Certificate correctly.

The Landlord appealed in relation to defective Confirmatory Certificate point, and the Tenants cross appealed in relation to the possession order.

The s8 Notice

The s8 Notice was signed by the Landlord’s property manager (not a director of the Landlord Company), and was in the prescribed form set out in The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No. 2) Regulations 2016 SI 2016/1118 which has a signature section as follows:

“6. Name and address of landlord/licensor

To be signed and dated by the landlord or licensor or the landlord’s or licensor’s agent (someone acting for him). If there are joint landlords each landlord or the agent must sign unless one signs on behalf of the rest with their agreement.

Signed… Date…
Please specify whether: landlord/licensor/joint landlords/landlord’s agent
Name(s) (Block Capitals)…
Address
Telephone Daytime Evening”

Here, the Landlord’s property manager had signed the s8 Notice, however under the signature, they had crossed out all other options save for “…landlord…”. There would have been no issue if the property manager had left “…landlord’s agent…”. The Tenant argued that by leaving in “…landlord…” the s8 Notice should have complied with s44 Companies Act 2006.

The Appeal Judge held that a s8 Notice did not need to be “executed” by the Landlord Company, as it was a preliminary warning, similar to a letter before claim, to the Tenant and it was a precondition for the Landlord.

Also, the s8 Notice can be signed by a Landlord’s Agent where no section 44 requirement would apply, and this suggested that less formal methods of verification were considered when the Regulations were drafted.

The s8 Notice was valid and the Tenants’ Appeal was dismissed. I would however point out that the Landlord details and signature section should always be carefully filled in, and the name, title and standing (e.g., “Landlord’s Agent”) should be very clear.

The Tenancy Deposit Prescribed Information Confirmation Certificate

The prescribed information was signed by a sole Director of the Company and was given to the Tenants in July 2014. It is important to note that this was before the Deregulation Act 2015 amendments.

Article 2(1)(g) of the Housing (Tenancy Deposits) (Prescribed Information) Order SI 2007/797 provided for signing by the Landlord, and said:

“(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant 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.”

As the Landlord in this case was a Company, the signature must have complied with s44 Companies Act 2006. The Certificate was therefore invalid, meaning that the Landlord lost the Appeal on this point.

Therefore, a s8 Notice can be signed by anybody authorised by the Landlord to do so.

For the Tenancy Deposit Prescribed Information Certificate provided prior to 25th March 2015 when the Deregulation Act 2015 amendments came in, this could only be signed by the Landlord. If the Landlord was a Company then the signature must have complied with s44 Companies Act 2006, namely that two Directors or a Director and Company Secretary should have signed, or if a sole Director, then the Director’s signature must have been witnessed by another party.

The Deregulation Act 2015 amendments make it clear that Article 2(1)(g)(vii) should be read as “the Landlord or the initial Agent”.

However, if the Landlord protected the Deposit then the Landlord must sign the Tenancy Deposit Prescribed Information Certificate.

If the Agent protected the Deposit, the Agent could sign on the Landlord’s behalf.

I would therefore strongly suggest that if an Agent is signing the Certificate, they make sure that s44 Companies Act 2006 is complied with in order to avoid any future unnecessary arguments.

The consequences of failing to sign the Tenancy Deposit Prescribed Information Certificate properly or at all are that any s21 Notice Seeking Possession would be invalid, and the Tenant would have a right to claim the return of the Deposit plus up to three times the amount of the Deposit for the Landlord’s breach of s213 Housing Act 2004.