Prescribed Information Signed by Companies

Prescribed Information Signed by Companies

Bali v Manaquel Company Limited, County Court at Central London (HHJ Hand QC), 15th April 2016 (Unreported).

This was an appeal of a possession order made against Mr Bali at Lambeth County Court. Mr Bali was the assured shorthold tenant of Manaquel Company Limited. A tenancy deposit was paid by Mr Bali to Manaquel and the tenancy deposit was protected within the required 30 days. Manaquel subsequently served a section 21 notice and issued possession proceedings. At first instance, the issue was whether Manaquel had complied with the requirements on serving the Prescribed Information.

The first instance Judge found that Manaquel had served the prescribed information and made the possession order, and the same issues were then raised on appeal.

The appellant asserted that the information that had been served was defective for two reasons.

  1. i) The landlord had not included the Deposit Protection Service leaflet for tenants. The landlord had included a print out of the DPS ‘terms and conditions’ but not the leaflet.

The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 includes s a requirement at 2(1)(b) to give the tenant:

(b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act

On this, the appeal Judge held that the requirement was to provide ‘any information contained in a leaflet’, not necessarily the leaflet itself. As it was common ground that the DPS ‘terms and conditions’ provided included somewhere in their considerable length all the information that was contained in the DPS leaflet, the requirement was satisfied, and this ground of appeal failed.

  1. ii) The landlord had not properly provided a certificate as required by s.2(1)(g)(vii) of the 2007 Order. This requires:

(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

The specific issue was that the certificate provided was ‘signed’ with Manaquel’s name written in manuscript as Manaquel Co. Ltd, and signed PP with illegible initials. Mr B argued that this did not comply with the requirements of s.44 Companies Act 2006 which states:

(2) A document is validly executed by a company if it is signed on behalf of the company–
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature

The question was whether the prescribed information certificate was a document that required ‘execution’.

The appeal judge held that it was, as it was a certification of the accuracy of the information for a ‘formal legal purpose’.

Accordingly, the requirement of s.2(1)(g)(vii) of the 2007 Order had not been met, the prescribed information had not been given in full and the section 21 notice served was not valid. The Judge acknowledged that this might well be a trap for the unwary, but the requirement was for a signed certificate, and that must be in a manner compliant with the Companies Act 2006.

The resulting order was stayed for 7 days for the Respondent to apply for permission to appeal, no appeal has yet been reported anywhere to our knowledge.

In a later case Joseph Muscat v Miss Valerie Ash, Miss Natalie Ash and Mr Andre Maxwell in the Croydon Court (District Judge Rowland) 11 July 2018 the same issue was raised but in relation to a letting agent, Gordon & Co (a trading style of IMM Properties Ltd) who signed the prescribed information.

The Court had to decide whether a letting agent which is a company when signing the prescribed information was required to comply with s.44 of the Companies Act 2006. The Defendants relied on Bali v Manaquel Company Limited. Mr Sasha Charles for the Claimant relied on the provision in s.213(6)(a) of the Housing Act 2004 which states the prescribed information must be provided in the prescribed form or a form substantially to the same effect. This point in effect argues that though the prescribed information was not signed in accordance with the Companies Act 2006 the prescribed information had still met its legal purpose.

 

In the authority Mountain v Hastings (1993) 25 H.L.R. 427 Ralph Gibson LJ said:

“The regulation, however, expressly permits the notice to be effective in the prescribed form if it is ‘substantially to the same effect’, which I take to mean to be showing no difference in substance having regard to the legislative purpose of the provisions as a whole.”

 

Further clarity was provided by Lord Justice Lewison in Ayannuga v Swindells [2012] EWCA Civ 1789 in which he stated:

I agree. The approach that we must take is clearly laid down by this court in Ravenseft Properties Limited v Hall to which Etherton LJ has referred. We must compare the form or information prescribed on the one hand and the information in fact supplied on the other. We must then ask, in the light of the purpose of the notice or the provision of information, whether the substance of the information has been supplied bearing in mind that that is a matter of fact and degree.

 

Lord Justice Mummery in Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 stated:

“… as I have already explained, are based on an unduly restrictive approach to the question of the conformity of the notice to the prescribed form. The judge was right to take the broader approach set out by him. The notice, despite its errors and omissions, conveyed to Mr Chubb the substance of the prescribed form and satisfies the statutory objective.”

District Judge Rowland found both arguments from the Defendants duty solicitor and Mr Charles for the Claimant persuasive but found that Bali v Manaquel Company Limited applied to letting agents in that letting agents which were companies would also be required to comply with s.44 of the Companies Act 2006 and accordingly the section 21 notice was invalid and the claim for possession was dismissed.

Comments

We must note that the Deregulation Act 2015 has varied the requirement for the landlord to sign the prescribed information to include ‘the initial agent’ in the definition of landlord to allow agents to sign the prescribed information. It is therefore important letting agents and also landlords which are companies ensure compliance with s.44 of the Companies Act 2006 when signing the tenancy deposit prescribed information.

This seems like a very technical point, but the court took heed of the importance placed on compliance by the court of appeal in Ayannuga v Swindells [2012] EWCA Civ 1789 (06 November 2012).

Yet something else for landlords and letting agents to check, where the prescribed information is signed by a company, is it signed in accordance with s.44 (two authorised signatories or a director in the presence of a witness)?