PRESS STATEMENT: Court of Appeal - Martyna Switaj v Adrian McClenaghan [2024] EWCA Civ 1457
4/12/2024
Judgment has been handed down in the Court of Appeal case of Martyna Switaj v Adrian McClenaghan (2024) EWCA Civ 1457 in which we acted for the appellant Ms Switaj.
We are naturally disappointed to have lost the appeal but wish to thank our client for her instructions throughout and express our gratitude to Counsel Martin Westgate KC (Doughty Street Chambers) and Miranda Grell (Staple Inn Chambers) for all of their input from the county court upwards.
The case had been propelled to the Court of Appeal under the rarely used ‘leapfrog’ procedure, on the basis that it raised a point of general principle in the development of the substantive law. It concerned the operation of the Tenant Fees Act 2019 which prohibits landlords and letting agents from charging tenants additional fees unless otherwise exempted. If a prohibited fee is paid but not returned then the landlord cannot rely on the section 21 Housing Act 1988 possession procedure.
The case addressed whether a fee paid originally under a tenancy prior to the TFA 2019 (in this case a tenancy check-out fee) could continue to bind subsequent replacement tenancies and whether it then became a prohibited fee post-TFA 2019. The case relied by analogy on the situation that arises with deposits where there is a notional repayment of a deposit with each new tenancy (Superstrike Ltd v Rodrigues). The Court though found against this and upheld the District Judge’s possession order which had distinguished the case from the “Superstrike” principle and found that the TFA 2019 did not apply in these circumstances.
We are grateful nonetheless to have been involved in an important decision which has helped clarify the law on the operation of TFA 2019 on which until now there had been no leading authority.
For any advice on tenant fees and the TFA 2019 or to discuss any issues surrounding the case please feel free to contact us further at admin@hclc.org.uk
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