Will English Tenancy Deposit Scheme Legislation impact on Scotland? A few months ago, the LetLaw team looked at the English case of Surpere v Nice where a landlord had failed to lodge the deposit with a tenancy deposit scheme.

The English courts have again looked at the tenancy deposit legislation and the impact on landlords if they fail to comply with their duties. As a health warning, it should be noted that the decisions of the courts in England are not binding on the Scottish courts. However, given the similarities between the tenancy deposit legislation in the two countries, it may be a sign of what?s to come in Scotland.

In the case of Ayannuga v Swindells, the landlord had paid the deposit into an English approved scheme but had failed to provide the prescribed information to the tenant as required by law. The landlord subsequently raised proceedings for eviction against the tenant who counterclaimed citing the landlords failure to comply with the provision of information relating to the deposit scheme. The landlord admitted their failure in this regard but argued that the requirement to provide information was simply procedural. The real purpose of the deposit legislation was to protect deposits in a scheme which the landlord had done. The lower court agreed with the landlord?s position and dismissed the tenants claim. However the tenant appealed the decision.

The Court of Appeal found in favour of the tenant. The provision of information under the tenancy deposit scheme legislation was not procedural and was a key element in ensuring the tenant was fully informed of their rights. The decision was upheld and, although the landlord had lodged the deposit with a scheme, his failure to provide the information led to the Court of Appeal ordering him to pay the tenant a penalty equal to three times the amount of the deposit.

The Tenancy Deposit Scheme Regulations 2011 in Scotland similarly impose a duty on landlords to lodge deposits with an approved scheme as well as providing the tenant with prescribed information. Landlords should be aware of the importance placed on that information ? the provision of said information is a legal duty and therefore just as important as the lodging of the deposit with the scheme.

For information regarding a landlord?s duties under the tenancy deposit scheme in Scotland, contact a member of the LetLaw team.?