Two tenancy deposit scheme decisions issued by Edinburgh Sheriff Court have given some insight on how the courts are going to treat the sanctions available under the tenancy deposit scheme regulations in Scotland.

In Fraser and Pease v Meehan, the landlord had failed to lodge the deposit with the scheme and provide the prescribed information. He claimed he wasn't aware of the scheme and the duties that came with it, as he lived in Australia.

The Sheriff,

• reiterated the importance of the regulations in ensuring that deposits are dealt with fairly
• stated that the penalty was designed to punish the landlord's behaviour
• said the regulations would be meaningless if they were not vigorously enforced
• felt the landlord had taken a dismissive attitude to his duties and had failed to provide any explanation for his failure to comply
• awarded the tenant three times the amount of the deposit - a whopping £3,450.

The situation was slightly different in Smith v Chan. The landlord's agent had lodged the deposit with a scheme and had attempted to send the prescribed information to the tenant. However when doing so, they misspelled the postcode of the tenancy address. The tenant denied having received anything. The Sheriff accepted that this had simply been an administrative error however he took the view that sending out the information where the postcode was incorrect did not equate to a provision of information and therefore compliance with the relevant duty.

The Sheriff did however take into account the circumstances surrounding the case. The deposit had been lodged and there had at the very least been an attempt to provide the information. He therefore awarded the tenant the sum of £775 which was equivalent to the deposit paid.

It is clear from the regulations and these cases that there is no discretion where a landlord had failed to lodge a deposit and/or failed to provide the prescribed information. The Sheriff must award the tenant something. However these two decisions have highlighted the courts discretion in the amount that can be awarded - it will not automatically be three times the amount of the deposit. Clearly if there are mitigating circumstances the court may be prepared to take these into account when calculating the award.

If you're a landlord and would like legal advice on the tenancy deposit scheme or any other landlord legal issue, get in touch.