The decision in the case of Superstrike Ltd -v- Rodrigues EWCA Civ 669 found that when a fixed-term tenancy expires and the tenant remains in the property on a periodic tenancy, a new tenancy is created.
This means there is a requirement to comply with s.213 of the Housing Act 2004 and protect the deposit. In the Superstrike case, the tenancy commenced prior to Tenancy Deposit Protection (TDP) coming into force, but it was found that the landlord should have protected the deposit at the start of the periodic tenancy - which began after TDP came into force - and so should have also served the prescribed information. These omissions resulted in the subsequent Section 21 notice being invalid, and the landlord was unable to regain possession of the property.
It was always thought that, though the tenancy began prior to TDP, the same principle might also apply to cases where the deposit was already protected, at the point at which the tenancy went on to become a periodic. Birmingham County Court has now confirmed this view in the case of Gardner -v- McCusker 3BM70525. It was decided that as the 'prescribed information' was not re-served when a post TDP fixed term tenancy came to an end and the Section 21 notice was not valid, even though the deposit was fully protected.
The Gardner -v- McCusker case broadly accords with the position taken by the deposit schemes since Superstrike. Care must therefore be taken to ensure the deposit is protected and the 'prescribed information' is re-served at the time any 'new' tenancy is deemed to be created.
