Tiensia and another v Vision Enterprises Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Sedley,Lord Justice Thorpe |
| Judgment Date | 11 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1224 |
| Date | 11 November 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B5/2009/1655;B5/2009/2163 |
[2010] EWCA Civ 1224
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON and MANCHESTER COUNTY COURTS
His Honour Judge Ellis; District Judge Stonier
Before : Lord Justice Thorpe
Lord Justice Sedley
and
Lord Justice Rimer
Case Nos: B5/2009/1655;B5/2009/2163
Case Nos: 8PB59368;8AL03329
James Bowen (instructed by Nicolas J.B. Goss, of the Wandsworth & Merton Law Centre) for the Appellant, Christelle Tiensia
Matthew Hutchings (instructed by Brian McKenna & Co) for the Respondent, Vision Enterprises Limite d
Jonathan Manning (instructed by Bury & Walkers LLP) for the Appellant, Honeysuckle Properties
The Respondents, James Fletcher, Frank McGrory and Matthew Whitworth, appeared in person
Hearing date: 7 May 2010
Lord Justice Rimer :
Introduction
These two appeals were heard together and raise the same issue, one of general importance concerning tenancy deposit schemes established under the Housing Act 2004. Putting it generally, section 213 imposes various obligations upon a landlord who receives a tenancy deposit, including: (i) to comply with the 'initial requirements' of an authorised scheme in relation to the deposit (which means taking steps to protect the deposit), and (ii) to do so within 14 days of its receipt; (iii) to give to the tenant prescribed information relating to such protection, and (iv) to do so within the same 14-day period. Section 214 requires the court in certain events to impose sanctions upon a landlord who has been or is in breach of his section 213 obligations, one sanction being an order requiring the landlord to pay the tenant a sum equal to three times the amount of the deposit.
The issue is as to the circumstances in which such sanctions must be imposed. Again put generally, the tenants' argument is that if the landlord fails to perform his section 213 obligations within the 14-day period, he will automatically be beyond redemption and will have no answer to a claim to impose the section 214 sanctions upon him. The landlord's argument is that section 214 deliberately avoids any focus on the 14-day requirements but instead focuses exclusively upon whether – by the time of the hearing of the tenant's application for the imposition of the sanctions – the landlord is still in breach of his obligations (i) and (iii) summarised in [1] above. If he is, the court must impose the sanctions. If he is not, it cannot do so.
In one of the appeals, Christelle Tiensia v. Vision Enterprises Limited (t/a Universal Estates), Universal, the respondent landlord, brought a claim against Ms Tiensia, the appellant, for possession and arrears of rent in Croydon County Court, a claim which was met by her section 214 counterclaim. Her counterclaim succeeded before Deputy District Judge Clarke on 23 February 2009, who (inter alia) ordered Universal to pay to Ms Tiensia's solicitors £7,200 (a sum equal to three times her deposit), but Universal's appeal was allowed by His Honour Judge Ellis on 17 June 2009. Lloyd LJ gave Ms Tiensia permission to appeal to this court on the basis that it was arguable that Judge Ellis was wrong and that the point was of sufficient general importance to justify a second appeal. Ms Tiensia was represented before us by James Bowen; and Universal by Matthew Hutchings. Both also appeared before Judge Ellis, although neither before Judge Clarke.
In the other appeal, Honeysuckle Properties v. Fletcher and Others, Honeysuckle (the trading name of Melissa Moore, the appellant landlord) brought a claim in Manchester County Court against its three tenants for unpaid rent, a claim that was met by the tenants' section 214 counterclaim. The claim and counterclaim were heard by District Judge Stonier on 30 January 2009 who found in favour of the tenants on their counterclaim and ordered Honeysuckle to pay them £3,408, an amount including a sum equal to three times that of their deposit. His Honour Judge Holman gave Honeysuckle permission to appeal and transferred the appeal to this court bearing in mind the importance of the issue that it raised. Jonathan Manning represented Honeysuckle before us and the respondent tenants (James Fletcher, Frank McGrory and Matthew Whitworth) appeared in person, Mr McGrory being their spokesman.
The legislation
Chapter 4 in Part 6 of the Housing Act 2004 is headed 'Tenancy Deposit Schemes'. It came into force on 6 April 2007. It set up tenancy deposit schemes to safeguard tenancy deposits paid in connection with assured shorthold tenancies, provided for the imposition of sanctions for failure to comply with the requirements of such schemes and set up structures to facilitate the resolution of disputes in connection with such deposits. The schemes are either custodial ones, in which the deposit is paid by the landlord into a designated account and held by the scheme administrator until it falls to be paid (either wholly or in part) back to the landlord or tenant; or insurance-based, in which (in short) the landlord keeps the deposit but its return is protected by insurance cover maintained by the scheme administrator. In both cases before us the deposit was protected by an insurance-based scheme.
I will set out the material provisions of sections 212 to 215, although the arguments focused primarily upon sections 213 and 214.
'212. Tenancy deposit schemes
(1) The appropriate national authority must make arrangements for securing that one or more deposit schemes are available for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies.
(2) For the purposes of this Chapter a “tenancy deposit scheme” is a scheme which –
(a) is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connection with such deposits, and
(b) complies with the requirements of Schedule 10.
(3) Arrangements under subsection (1) must be arrangements made with any body or person under which the body or person (“the scheme administrator”) undertakes to establish and maintain a tenancy deposit scheme of a description specified in the arrangements.
(4) The appropriate national authority may –
(a) give financial assistance to the scheme administrator;
(b) make payments to the scheme administrator (otherwise than as financial assistance) in pursuance of arrangements under subsection (1).
(5) The appropriate national authority may, in such manner and on such terms as it thinks fit, guarantee the discharge of any financial obligation incurred by the scheme administrator in connection with the arrangements under subsection (1).
(6) Arrangements under subsection (1) must require the scheme administrator to give the appropriate national authority, in such manner and at such times as it may specify, such information and facilities for obtaining information as it may specify.
(7) The appropriate national authority may make regulations conferring or imposing –
(a) on scheme administrators, or
(b) on scheme administrators of any description specified in the regulations,
such powers or duties in connection with arrangements under subsection (1) as are so specified. ….'
Section 212(8) defines a 'shorthold tenancy' as an assured shorthold tenancy within the meaning of Chapter 2 of Part I of the Housing Act 1988; a 'tenancy deposit' as any money intended to be held (by the landlord or otherwise) as security for (a) the performance of any obligations of the tenant, or (b) the discharge of any liability of his arising under or in connection with the tenancy; and 'custodial scheme' and 'insurance scheme' as having the meaning given by paragraph 1(2) and (3) of Schedule 10.
'213. Requirements relating to tenancy deposits
(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.
(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.
(4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to –
(a) the authorised scheme applying to the deposit,
(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and
(c) the operation of provisions of this Chapter in relation to the deposit,
as may be prescribed.
(6) The information required by subsection (5) must be given to the tenant and any relevant person –
(a) in the prescribed form or in a form substantially to the same effect, and
(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord. …
(9) The provisions of this section apply despite any agreement to the contrary.
(10) In this section –
...
To continue reading
Request your trial
-
Suurpere v Nice
...in the case of Tiensia v. Vision Enterprises Limited(Trading as Universal Estates): Honeysuckle Properties v. Fletcher and Others [2010] EWCA Civ. 1224, dated 11 November 2010. This case was obviously not available to Judge Reid at the time he was considering this issue. 32 Giving the decis......
-
Potts v Densley
...2010. 2 The judge's decision pre-dated by several months the Court of Appeal's judgment in the conjoined appeals of Tiensia v Vision Enterprises Ltd (t/a Universal Estates) and Honeysuckle Properties v Fletcher and others [2010] EWCA Civ 1224 which was handed down in November 2010. 3 Chapte......
-
Northwood (Solihull) Ltd v Vicky Cooke
...[2011] EWCA Civ 466; [2011] Bus LR 1479; [2011] 4 All ER 444, CAVision Enterprises Ltd (trading as Universal Estates) v Tiensia [2010] EWCA Civ 1224; [2012] 1 WLR 94; [2011] 1 All ER 1059, CAAPPEAL from Saini JBy a claim form issued on 11 April 2017, the claimant landlord, Northwood Solihul......
-
Ayannuga v Swindells
...for the purposes of section 213(5) of the 2004 Act. The order does not prescribe a form as such, but, as was recognised in Vision Enterprises Ltd v Tiensia [2010] EWCA Civ 1224, [2012] 1 WLR 94 at paragraph [7] (Rimer LJ), the effect of the order is to prescribe what information has to be ......