Landlords are being wrongly advised that their possession claims will fail because of tenant deposit paperwork, according to solicitor David Smith. He suggests that some of this confusion is coming from the lawyers advising them.
Writing on LinkedIn, Mr Smith criticised solicitors who tell landlords and letting agents that notices may be invalid or deposits improperly protected, when in his view, this is not the case. He stated that this 'causes complaints and division between parties which is frequently unjustified'.
Mr Smith's warning focuses on 'prescribed information', which are the details landlords must provide to tenants about their deposits, and how courts handle alleged errors in these documents. He noted that he has recently been asked to advise on deposit protection multiple times, despite believing the subject was largely settled.
He also questioned the legal authorities used to support some of this advice, stating that it is common to quote 'often outdated, County Court cases' which are not current or valid, and that Court of Appeal authority discounts most of them.
According to Mr Smith, prescribed information does not require a single standard form or to be in one document. Certain details must be certified as accurate, and tenants must have the opportunity to sign the certification, though whether they do so is 'irrelevant'.
The legal position on this issue will be further examined when the Supreme Court considers the case of Lowe v Charterhouse in November. Mr Smith anticipates the court will maintain the approach taken in recent decisions, although the outcome is currently undecided.