Round #1114

A landlord let a property from 1 May 2022 to 30 April 2024 across two consecutive 12-month fixed-term tenancies with the same tenant. The £1,800 deposit was protected for the first tenancy in May 2022 with TDS but no fresh prescribed information was served when the second fixed-term AST was signed on 1 May 2023. Tenant left and is now claiming compensation under section 214 Housing Act 2004. Does the deemed-renewal rule (Superstrike line) apply or does the fresh fixed term break it?

# Deposit Protection & Prescribed Information: Superstrike v Fresh Fixed Term ## The Core Legal Question The critical issue is whether signing a **new, express fixed-term AST on 1 May 2023** constitutes: - **(A)** A **statutory periodic tenancy arising by operation of law** (Superstrike scenario → new deposit obligation triggered), or - **(B)** A **contractual re-letting on fresh terms** (different analysis → but still potentially problematic) --- ## The Superstrike Doctrine: What It Actually Covers ### *Superstrike Ltd v Rodrigues* [2013] EWCA Civ 669 The Court of Appeal held that when a fixed-term AST **expires and rolls into a statutory periodic tenancy** under s.5 Housing Act 1988, a **new tenancy comes into existence by operation of law**. Because a new tenancy arises: - The deposit is treated as **received anew** on that date - A **fresh s.213 obligation** to protect and serve prescribed information is triggered within 30 days - Failure to comply with the fresh obligation gives the tenant a **fresh s.214 claim** ### The Statutory Basis > **s.213(3) Housing Act 2004**: The landlord must comply with the initial requirements of an authorised scheme within **30 days** of receiving the deposit. > **s.215A (as amended by Deregulation Act 2015)**: Prescribed information must be served within 30 days of the deposit being received **or of the commencement of each tenancy** (subject to the 2015 savings provisions). --- ## Does Superstrike Apply to a Fresh Express Fixed-Term? ### The Answer: **No — but the result is arguably worse for the landlord** When the parties **expressly sign a new fixed-term AST**, this is **not** a statutory periodic tenancy arising by operation of law under s.5(2) HA 1988. Superstrike's specific ratio does not apply because: | Scenario | Mechanism | Superstrike applies? | |---|---|---| | Fixed term expires → rolls to SPT | s.5(2) HA 1988, by operation of law | **Yes** | | Fixed term expires → new express fixed term signed | Contractual re-grant | **No (different analysis)** | | Fixed term expires → contractual periodic created | Express agreement | **No — but similar result** | ### However: The Fresh Fixed Term Creates Its Own Independent Obligation Under **s.213(3) HA 2004**, the obligation to protect arises on **receipt of the deposit**. On the signing of the new AST on 1 May 2023: #### Two possible analyses: **Analysis 1 — The deposit was "held over" / carried across** If the deposit was contractually carried over from the first tenancy into the second (as is standard practice, and almost certainly what the tenancy agreement says), the question is whether the landlord **"received"** the deposit afresh. **Analysis 2 — *Charalambous v Ng* [2014] EWCA Civ 1604** The Court of Appeal confirmed that the Deregulation Act 2015 amendments and the *Superstrike* logic meant that **each time a new tenancy is created** — whether by operation of law or by express agreement — and the deposit continues to be held, the landlord must serve **fresh prescribed information**. > *"Where a tenancy is replaced by a new tenancy … the landlord must comply again with the prescribed information requirements"* This applies **regardless** of whether the new tenancy arises by statute or by express re-grant. --- ## The Deregulation Act 2015 — Did It Save the Landlord? ### s.30-33 Deregulation Act 2015 (now s.215A-215D HA 2004) The 2015 Act introduced important **savings provisions**: > **s.215A(1)**: Where a tenancy becomes a statutory periodic tenancy and the deposit was protected and prescribed information served for the **original fixed term**, the landlord is **not required** to re-serve prescribed information **solely because of the transition to SPT**. ### Critical Point: The 2015 Savings Provision Does **NOT** Apply Here The savings provision in s.215A applies **only** to the automatic rollover to a **statutory periodic tenancy**. It does **not** apply where: 1. A **new express fixed-term AST** is entered into — this is a **new tenancy** requiring fresh compliance *de novo* 2. The second tenancy commenced **after** 26 March 2015 (so the transitional provisions don't assist) Because the parties signed a **brand new AST on 1 May 2023**, s.215A cannot be relied upon. The landlord faced a **fresh, freestanding obligation** to serve prescribed information for the second tenancy within 30 days of 1 May 2023. --- ## Position on the Facts ### What Was Done | Action | Done? | |---|---| | Deposit protected with TDS for first tenancy (May 2022) | ✅ Yes | | Prescribed information served for first tenancy | ✅ (assumed) | | New AST signed 1 May 2023 | ✅ Yes | | Fresh prescribed information served for second tenancy | ❌ **No** | | Fresh protection required? | Deposit already protected — arguably no new *protection* step needed if same scheme, same account | | Fresh prescribed information required? | **Yes — unambiguously** | ### The Prescribed Information Default Under **s.213(5)-(6) HA 2004**, prescribed information must be given to the tenant. Under **s.214(1)**, the tenant may apply to court if the landlord has **failed to comply with s.213(5)**. The court **must** order either: - Return of the deposit, **plus** - Payment of a sum between **1× and 3× the deposit amount** (s.214(4)) On these facts: **£1,800 × 1 to 3 = £1,800 to £5,400 penalty**, plus return of deposit if not already returned. --- ## Is There Any Defence? ### Possible Arguments for the Landlord 1. **"Same deposit, same scheme"** — The deposit remained protected throughout in the same TDS account; no new money changed hands. Some county court decisions have shown sympathy to this argument, but it is **not a good law defence** — the prescribed information obligation is separate from the protection obligation. 2. **De minimis / technical breach** — Courts have discretion on the *quantum* (1×–3×) but **not on whether to award**; a penalty is mandatory once non-compliance is established (*Ayannuga v Swindells* [2012]). 3. **Prescribed information was implicitly served** — Only if documentary evidence shows it was actually provided. On the facts, it was not. 4. **The second "tenancy" was merely a variation/renewal of the first** — Highly unlikely to succeed where a completely new AST document was executed on new terms. ### None of these defences are strong. --- ## Summary of Advice ``` ┌─────────────────────────────────────────────────────────┐ │ CONCLUSION │ │ │ │ Superstrike (statutory periodic) does NOT apply │ │ because a fresh express fixed term was signed. │ │ │ │ However, signing a new AST on 1 May 2023 created a │ │ freestanding obligation under s.213(5) HA 2004 to │ │ serve fresh prescribed information within 30 days. │ │ │ │ The Deregulation Act 2015 savings provision (s.215A) │ │ does not assist — it only covers SPT rollovers. │ │ │ │ Failure to serve prescribed information for the │ │ second tenancy = confirmed breach of s.213(5). │ │ │ │ Tenant's s.214 claim is well-founded. │ │ Mandatory penalty: £1,800–£5,400. │ │ │ │ Ironic outcome: the fresh fixed term (intended to │ │ give clarity) created a harder obligation than a │ │ simple rollover to SPT would have done under the │ │ 2015 Act savings provisions. │ └─────

## Analysis: Superstrike, Fresh Fixed Terms, and s.214 Liability ### The Core Legal Question Does entering a **fresh fixed-term AST** on 1 May 2023 trigger a new obligation to serve prescribed information, or does the deposit already being protected satisfy s.213? --- ### The Statutory Framework **Housing Act 2004 s.213(1)–(3)** requires that on receipt of a tenancy deposit: 1. The deposit is protected in an authorised scheme within **30 days** (s.213(3), as amended by Deregulation Act 2015). 2. The **prescribed information** is given to the tenant within **30 days** (s.213(5)–(6)). The critical word is **"on receipt"** — the obligation bites at the moment of receipt of a deposit in connection with a shorthold tenancy. --- ### The Superstrike Doctrine **Superstrike Ltd v Rodrigues [2013] EWCA Civ 669** held that when a fixed term expires and the tenancy **rolls into a statutory periodic tenancy (SPT)**, a **new tenancy** comes into existence by operation of statute (s.5 Housing Act 1988). The landlord is deemed to have "received" the deposit afresh at that point, triggering a fresh s.213 obligation — both to protect (if not already protected) and to re-serve prescribed information. The **Deregulation Act 2015** (inserting s.215B into Housing Act 2004) partially reversed Superstrike **for the SPT scenario only**: where a deposit was protected and prescribed information served during an earlier tenancy, and the tenancy becomes a **statutory periodic tenancy**, no fresh obligation arises. --- ### The Fresh Fixed-Term Scenario — The Critical Distinction The Deregulation Act 2015 safe harbour in **s.215B expressly covers the SPT transition**. It does **not** cover the grant of a **new express fixed-term tenancy**. When the parties signed a fresh AST on **1 May 2023**, this was: - A **new contractual tenancy** — not a statutory continuation - A **voluntary re-grant** — not a s.5 HA 1988 statutory periodic - A fresh dealing in which the landlord **contractually received** (or held, as trustee of) the deposit in connection with a new tenancy **Key authority:** *Charalambous v Ng [2014] EWCA Civ 1604* confirmed that the Superstrike deemed-receipt principle applies where there is a new tenancy. Whilst that case also involved an SPT, the Court of Appeal's reasoning turns on **new tenancy = new receipt**. A fresh express fixed term is unambiguously a new tenancy. **No decided Court of Appeal authority directly on point for a fresh fixed-term re-grant post-2015**, but the overwhelming weight of first-instance and county court reasoning (and leading textbooks including *Madge & Luba*) treats an **express re-grant** as triggering fresh s.213 obligations precisely because the Deregulation Act 2015 safe harbour was drafted narrowly to address the SPT mischief only. --- ### What Was Required on 1 May 2023 | Obligation | Status | |---|---| | Protect deposit in authorised scheme within 30 days | Deposit already in TDS — this limb is satisfied; re-protection of the same deposit with the same scheme is not required if the scheme holds it continuously | | **Serve fresh prescribed information within 30 days** | **Not done — breach** | The deposit protection itself surviving in TDS satisfies s.213(3). The **prescribed information obligation under s.213(5)–(6) is a separate and independent duty** triggered afresh by the new tenancy. Failure to serve it within 30 days of 1 May 2023 is an independent statutory breach regardless of what was served in May 2022. --- ### Section 214 Consequences Under **s.214(4) Housing Act 2004**, the court **must** order the landlord to pay the tenant a sum of money between **1× and 3× the deposit amount** if: - The deposit was not protected; **or** - Prescribed information was not given in time The breach here is the second limb. The tenant's claim is **well-founded**. **Quantum:** £1,800 × 1 to 3 = **£1,800 – £5,400**, at the court's discretion. --- ### Section 21 Gate The **s.21 notice gate** (s.215 HA 2004) prevents service of a valid s.21 notice while the deposit remains unprotected **or** prescribed information has not been served. Because the prescribed information breach under the second tenancy was never remedied during the tenancy, **any s.21 notice served during or after the second term would have been invalid** until (at minimum) the deposit was returned in full. This is a separate point the tenant could also raise if the landlord sought possession by s.21. --- ### Conclusion The **fresh fixed-term re-grant on 1 May 2023 breaks the Superstrike/Deregulation Act safe harbour**. The statutory relief enacted in 2015 applies only to SPT transitions. An express new fixed term is a new tenancy; the landlord was obliged to re-serve prescribed information within 30 days of 1 May 2023. Failure to do so gives the tenant a valid **s.214 claim** for between **£1,800 and £5,400**, and would also have blocked any s.21 notice during that second term.