Round #1112

Tenant paid £1,650 deposit on 12 March 2024 for a tenancy commencing 1 April 2024 at 22 Cedar Lane, Sheffield. Landlord protected the deposit with mydeposits on 28 May 2024 (57 days after receipt) and served the prescribed information the same day. Landlord now wants to serve Section 21 in May 2025. What is the legal position under sections 213-215 of the Housing Act 2004 as amended by the Deregulation Act 2015?

# Legal Analysis: Deposit Protection & Section 21 Validity ## 22 Cedar Lane, Sheffield — Tenancy commencing 1 April 2024 --- ## 1. The Statutory Framework ### Housing Act 2004, ss.213–215 (as amended by Deregulation Act 2015) **Section 213(3)** requires the landlord to protect the deposit in an authorised scheme **within 30 days** of receiving it. **Section 213(5)–(6)** requires the landlord to serve **prescribed information** on the tenant within the same **30-day period**. **Section 215(1)** provides that where a deposit has **not been protected in accordance with the initial requirements** of an authorised scheme, the landlord **may not serve a valid Section 21 notice**. **Section 215(2A)** (inserted by Deregulation Act 2015) provides that the s.215(1) bar is **lifted** if: - the deposit has since been **returned** to the tenant (in full or with agreed deductions), **or** - the landlord has made an application to the court under s.214 and the court has made an order directing payment into a scheme or to the tenant. **Section 215(2B)** further provides that where a **court order** has been made under s.214 (penalty of 1–3× deposit), the s.215(1) bar is also lifted. --- ## 2. Chronological Analysis | Event | Date | Day Count | |---|---|---| | Deposit received | 12 March 2024 | Day 0 | | **30-day deadline** | **11 April 2024** | Day 30 | | Deposit protected with mydeposits | 28 May 2024 | **Day 77** | | Prescribed information served | 28 May 2024 | Day 77 | | Proposed Section 21 service | May 2025 | — | > **The deposit was protected 47 days late.** The 30-day statutory deadline was 11 April 2024. Protection on 28 May 2024 constitutes a **clear breach of s.213(3)**. --- ## 3. Consequences of Late Protection ### (a) Financial Penalty — s.214 The tenant **may** apply to the county court for an order requiring the landlord to pay a penalty of **between 1× and 3× the deposit amount** (£1,650–£4,950). The court retains discretion as to quantum. This right is not time-barred by the fact the deposit has since been protected; *late* protection does not extinguish the liability that crystallised on Day 31. ### (b) Section 21 Bar — s.215(1) This is the **critical issue** for the landlord. Because the deposit was not protected within 30 days, **s.215(1) applies and the landlord cannot serve a valid Section 21 notice** — *unless* one of the two saving provisions in s.215(2A) is engaged. --- ## 4. Can the Landlord Serve Section 21 in May 2025? ### The Two Saving Routes under s.215(2A) **Route 1 — Return the deposit in full** If the landlord **returns the entire deposit** (£1,650) to the tenant *before* serving the Section 21 notice (or with any agreed deductions), the s.215(1) bar is **lifted** and a valid Section 21 notice can be served. - This is the **simplest and most commonly used** route in practice. - The deposit must be returned *in full* (absent written agreement on deductions) — partial return does not suffice: *Charalambous v Ng* [2014] EWCA Civ 1604. - Once returned, the landlord may serve Section 21 immediately thereafter. - **Practical consequence**: the landlord loses the security of the deposit for the remainder of the tenancy, which is a commercial risk to weigh. **Route 2 — Court order under s.214** If the tenant has brought (or the landlord invites) a s.214 application and the court makes an order, the bar lifts. This route is entirely **tenant-driven** and therefore not within the landlord's unilateral control. The landlord cannot manufacture this route independently. ### Does Late-but-Current Protection Itself Lift the Bar? **No.** This is the most important point. The mere fact that the deposit is *now* protected with mydeposits does **not** cure the s.215(1) bar. The Deregulation Act 2015 deliberately **did not** include "subsequent late protection" as a saving route. Parliament's omission was intentional: - *Tithe Barn Ltd v Stratton* and the earlier Court of Appeal authority of *Superstrike Ltd v Rodrigues* [2013] EWCA Civ 669 confirm the breach is committed at Day 31 and subsequent compliance does not retrospectively cure it. - The 2015 Act reforms specifically addressed the position on tenancy renewals (s.215A — deposit protected before commencement of a new tenancy) but **did not create a general cure by late protection**. ### s.215A — Does it Assist? Section 215A (inserted by Deregulation Act 2015) provides that where a deposit was received in connection with a *former tenancy* and the deposit **is protected** at the commencement of a *new* tenancy (whether statutory periodic or replacement fixed term), the s.215(1) bar does **not apply** to the new tenancy. - On the facts, the tenancy commenced **1 April 2024** and the deposit was protected **28 May 2024** — i.e., **after** commencement. - s.215A therefore **does not assist** here because protection did not occur before or at commencement of the tenancy. The tenancy is the same tenancy, not a successor. - If the fixed term ends and a **statutory periodic tenancy** arises, the deposit is already protected (albeit late) during the fixed term — the periodic tenancy would be a "new" tenancy for s.215A purposes and the bar would **not apply to the periodic tenancy** provided the deposit remains protected at that point, per *Charalambous v Ng* and the 2015 Act framework. > **However**, the May 2025 Section 21 is presumably being served during or after the fixed term. If the fixed term was 12 months (ending 31 March 2025), the statutory periodic tenancy began **1 April 2025**. In that case, s.215A **may** lift the bar for the periodic tenancy — but only if the deposit **was protected at commencement of the periodic tenancy** (1 April 2025), which it was (having been protected since 28 May 2024). This is a **significant and important point** in the landlord's favour if the fixed term has already expired. --- ## 5. Summary of Legal Position | Scenario in May 2025 | Section 21 Valid? | |---|---| | Fixed term still running; deposit not returned | ❌ **Invalid** — s.215(1) bar applies | | Fixed term expired (SPT arisen 1 April 2025); deposit remains protected | ✅ **Likely valid** — s.215A lifts bar for SPT (deposit protected before SPT commenced) | | Landlord returns deposit in full before serving s.21 | ✅ **Valid** — s.215(2A) saving engaged | | Neither deposit returned nor SPT arisen | ❌ **Invalid** | --- ## 6. Prescribed Information — Separate Issue Prescribed information was also served 77 days late (served 28 May 2024 against a 30-day deadline of 11 April 2024). This is a **concurrent breach** but does not create a *separate* s.21 bar beyond s.215(1). It does however: 1. Give the tenant an **independent basis** for a s.214 penalty claim. 2. Reinforce that the landlord's overall compliance was defective. --- ## 7. Practical Advice for the Landlord 1. **Confirm whether the fixed term has expired.** If a statutory periodic tenancy commenced 1 April 2025 with the deposit continuously protected, s.215A likely enables a valid Section 21 — this should be the primary analysis. 2. **If still in fixed term**, return the full deposit to the tenant before serving Section 21 (accepting the commercial risk of loss of security). 3. **

## Legal Analysis: Section 21 Notice Validity — 22 Cedar Lane, Sheffield --- ### 1. Chronology of Key Events | Event | Date | Day Count | |---|---|---| | Deposit received | 12 March 2024 | Day 0 | | Tenancy commenced | 1 April 2024 | — | | Statutory deadline for protection | 11 April 2024 | Day 30 | | Deposit actually protected (mydeposits) | 28 May 2024 | **Day 77** | | Prescribed information served | 28 May 2024 | Day 77 | | Landlord wishes to serve s.21 | May 2025 | — | --- ### 2. The Statutory Framework **Housing Act 2004, s.213(3)** requires the landlord to protect the deposit in an authorised scheme within **30 days of receipt**. For a deposit received 12 March 2024, the deadline was **11 April 2024**. **s.213(5)-(6)** requires the landlord to serve the prescribed information (scheme details, dispute resolution, etc.) on the tenant within the same 30-day window. **Deregulation Act 2015, s.30** (inserting s.215A–215B into HA 2004) provides that a landlord **may** remedy a late protection by protecting the deposit and serving prescribed information before serving the s.21 notice. However, this does not extinguish all consequences of late protection. --- ### 3. The Critical Issue: Late Protection by 47 Days The deposit was protected **57 days** after receipt, against a statutory deadline of 30 days. This is a **clear breach of s.213(3) HA 2004**. #### Gate 1 — Can s.21 Be Served At All? Under **s.215(1) HA 2004** (as amended), a s.21 notice **cannot be given** while: - the deposit has not been protected, **or** - the prescribed information has not been served. Both conditions were remedied on 28 May 2024. Therefore, as of May 2025, **neither of these absolute bars applies on its face**. #### Gate 2 — Deregulation Act 2015 s.30/s.215A Remedy Section 215A permits the landlord to cure a late protection position by protecting and serving prescribed information, which then **lifts the s.215(1) bar**. The landlord did this on 28 May 2024. On a strict reading of s.215A, the s.21 gate is therefore **open** for the purpose of serving notice in May 2025, provided all other requirements are met. **However**, this remedy does not eliminate the tenant's right to bring a **s.214 penalty claim** for the period of late protection (see section 4 below). --- ### 4. Tenant's Parallel Remedy: s.214 Penalty Claim Notwithstanding the landlord's ability to serve s.21, the tenant retains a live claim under **s.214 HA 2004**: - The court **must** order return of the deposit or continuation of protection; and - The court **may** order a penalty of **1× to 3× the deposit amount**. | Penalty Band | Amount | |---|---| | Minimum (1×) | £1,650 | | Maximum (3×) | £4,950 | The limitation period under the Limitation Act 1980 is **6 years** from the cause of action (the breach on 12 April 2024), so the tenant's claim is very much alive. The tenant could raise this as a **counterclaim** in any s.21 possession proceedings, which strategically weakens the landlord's position considerably even if the s.21 notice is formally valid. --- ### 5. Additional s.21 Validity Requirements (Deregulation Act 2015, ss.33–34) Even if the deposit gate is cleared, the landlord must satisfy all of the following before a valid s.21 notice can be served in May 2025: | Requirement | Legal Source | Status | |---|---|---| | EPC provided to tenant | DA 2015 s.38 / reg. 6 | Must verify | | Gas Safety Certificate provided | DA 2015 s.38 | Must verify — if not given **before** tenancy commenced, **cannot be retrospectively cured** (*Trecarrell House v Rouncefield* [2020] EWCA Civ 760 distinguishes: gas safety cert given late before s.21 is served may be acceptable depending on facts) | | How to Rent guide served | DA 2015 s.38 | Must have been served at commencement or latest version thereafter | | Prescribed Form 6A used | CPR 55 / SI 2015/1646 | Mandatory | | Notice not served within first 4 months | s.21(4B) HA 1988 | Satisfied — tenancy commenced April 2024 | | Notice expires after fixed term | s.21(1)(b) HA 1988 | Check AST terms | | No outstanding repairs complaint | DA 2015 ss.33–34 | Retaliatory eviction check — no local authority notice served? | | No rent repayment order outstanding | — | Must verify | --- ### 6. Retaliatory Eviction Protection (DA 2015 ss.33–34) If the tenant has **complained in writing** about the property's condition and the landlord served s.21 in response **without properly addressing the complaint**, s.33 DA 2015 applies a **6-month suspension** of the s.21 notice if a local authority serves an improvement notice or emergency remedial action notice under HA 2004 Part 1. There is no indication of this on current facts, but the landlord must be clear no such complaint has been made. --- ### 7. Conclusion and Practical Position | Issue | Outcome | |---|---| | Deposit protected late (57 days) | **Breach of s.213(3) — 47 days late** | | s.21 gate currently blocked? | **No** — cured under s.215A by protection on 28 May 2024 | | Can s.21 be served in May 2025? | **Yes, in principle**, subject to all other gates being satisfied | | Tenant's s.214 penalty claim extinguished? | **No** — tenant retains 1×–3× claim (up to £4,950) | | Strategic risk to landlord | **High** — tenant can counterclaim in possession proceedings | **Bottom line:** The landlord is not automatically barred from serving s.21 in May 2025 because the deposit was belatedly protected before notice is served, which engages the s.215A cure. However, the landlord faces a substantial, live s.214 penalty exposure of up to **£4,950** which the tenant will almost certainly deploy in proceedings. The landlord should also audit compliance with EPC, gas safety, and How to Rent requirements, any one of which — if missed — creates an **incurable bar** to a valid s.21 notice on the current tenancy.