Home » News » UPDATE: Court case that could ‘wipe out’ many letting agents allowed appeal
Regulation & Law

UPDATE: Court case that could ‘wipe out’ many letting agents allowed appeal

Lawyers handling a High Court case we reported on in January involving Northwood's Solihull branch have now been given leave to appeal.

Nigel Lewis

high court rental deposit letting agents

The lawyers handling a little-known evictions and rental deposit case heard in the High Court last year that threatens to ‘wipe out’ many letting agents have now been given leave to appeal.

The case kicked off when, in 2019, the Solihull branch of Northwood tried to evict a couple who had stopped paying their rent, and served a Section 8 eviction notice.

But tenants Mr Fearn and Ms Cooke argued during an initial County Court hearing that under section 44 of the Companies Act 2006 their eviction notice had not been signed by two authorised signatories or by a company director in the presence of a witness, and that also the section 44 requirements also applied to the confirmatory certificate for their original deposit.

On this basis, they argued that the attempted eviction was invalid. But the case was then elevated to the High Court at a hearing held on December 21st 2019.

Rental deposit

At this hearing judges ruled that section 44 of the Companies Act 2006 did not apply to eviction notices, but did uphold the claim that it applied to a confirmatory certificate for a rental deposit.

Link to Lettings newsAt the time leading lawyer David Smith of JMW argued that: “The reality of this case is that, as things currently stand, if you as an agent have signed a proscribed [rental deposit] information certificate on behalf of a landlord and you’re a corporate agent, then if it has not been signed by a director and witnessed, then the certificate will be defective,”. He and colleague and Justin Bates are now representing the landlord in the case.

“This means attempting to serve a Section 21 will not be possible, and a tenant could turn around, make a claim against you for up to three times the original deposit.

“So I am concerned about the possibility of a massive blast of claims against agents because the High Court judgement is retrospective going back six years as well as looking forward.

“This could wipe out some lettings agencies if their insurance won’t cover it.”

Both landlord and tenant have now been granted permission to appeal.

Read David Smith’s original blog on the case.

February 10, 2021

2 comments

  1. That’s interesting because electronic signing which has had legal status since before 2006 (Electronic Communications Act 2000) should be taken into account . If a company has just one director and signs the prescribed form it cant be signed by a second director and it cant be witnessed because a person cannot be in the presence of another who has signed electronically remotely and attest (witness) the document being signed. Therefore, the electronic signing by one director, in a single director company, of the prescribed form should suffice, if signing a paper copy then it would require a witness or second director. Clearly incompatible legislation and a surprise that it takes a tenancy deposit case to bring attention to this when there has been millions of (non deposit) documents signed by a single director without a witness. Absurd.

  2. Minor administrative errors, perhaps not even errors because it was normal practice, can wipe out an agent or landlord. This government must really hate the PRS to allow such a situation to persist.

What's your opinion?

Please note: This is a site for professional discussion. Comments will carry your full name and company.

This site uses Akismet to reduce spam. Learn how your comment data is processed.