Agent Login

Forgotton Password?

LANDLORD AND TENANT UPDATE

SECTION 21 (6A) NOTICE
The government has announced that a consultation will take place with regards to ending section 21 notices related to Assured Shorthold tenancies (in England). It is thought that the demise of Section 21 is pretty much a certainty, its just a matter of time. It is also suggested that there will be changes made to Section 8, with the addition/amendment and possibly removal of particular grounds. For now, there is nothing to worry about, as it is at the very early stages and there is nothing to do to prepare for such eventuality until the consultation takes place and more details are released.

 

AMENDED SECTION 21 (6A) FORM
CARE: As of 1 June 2019 there will be a new style Section 21 notice, which must be used as of 1 June 2019. The notice has just a couple of very minor amendments, but should be used nonetheless. It is unknown whether or not a court will permit an out of date version S21 notice and if it will be deemed invalid. It could be argued that the notice is of substantially the same effect and should therefore be accepted, but this is not guaranteed or an argument which we encourage. For correctness and to avoid uncertainty, it is more prudent to conclude that an old version section 21 notice will be considered invalid and it will be recommended that the new style (“Prescribed 6A Form”) notice be served.
Previously, section 21 notices just had to be in writing, giving a tenant the relevant time period in which to give possession. These notices had no specific style. Now, there is a “Prescribed Form” which must be used at all times.

 

PRESCRIBED REQUIREMENTS
When we talk about Prescribed Information and Prescribed Requirements, it captures a number of documents, not just the documents which support the deposit protection.
Prescribed Documents are made up of:-
Deposit Certificate;
Deposit Scheme Terms and Conditions (where applicable);
Deposit Scheme Leaflet (where applicable);
Gas Safety Certificate (if applicable);
EPC;
How to Rent Guide.
All of the Prescribed Requirements relevant to each Document must be adhered to in order for a Section 21 notice to be valid.
It may seem obvious, but essential to point out that any document given to a tenant should ideally be signed for by each tenant, clearly stating which document they have been given.

Tenancy Deposit Prescribed Information must be presented to a tenant to read through and check before signing. This requirement is set out in legislation and an agent or landlord must be able to confirm that the tenant was given the opportunity to check the content of the prescribed information before being offered to sign for it. If a tenant does not sign for the Prescribed Information relating to the deposit it does not invalidate the deposit protection nor does it prevent an agent/landlord from serving a Section 21 notice, provided it can be provided that the tenant was given a copy to check its content before being offered to sign. Obviously, any amendments which the tenant requires/points out must be made and re-served on the tenant. Failure to prove this requirement may lead to the failure of a section 21 claim and possibly give rise to a penalty claim for non-compliance with legislation.

The How to Rent Guide can be emailed to a tenant, or a hard copy given. The legislation goes on to say that electronic (email) documents can only be sent with prior consent from the tenant, confirming that they will accept the document by email. Proof of such consent must be kept by the agent/landlord, or better still incorporate a clause within the tenancy agreement whereby the tenant agrees to allow the landlord/agent to serve the How to Rent Guide by email and ensure to take and stipulate the email address of the tenant which can be used.

 

Documents where signature is by a company:-
For contracts made by a company additional execution requirements set out in section 44 of the Act must be observed:
the company’s seal must be affixed to the document OR
two directors or a director and the company secretary must sign the document OR
one director must sign the document in the presence of a witness who attests the director’s signature

 

GAS SAFETY CERTIFICATE
There have been two cases where a gas safety certificate was not given to a tenant before occupation of the tenanted property and as a result the landlords section 21 notice was held to be invalid.
It is now the view that tenants must be provided with a copy of the Gas Safety/Gas Check document prior to entering into the tenancy agreement at the start of the tenancy. The document must be given to the tenant by the landlord or the agent. A landlord cannot serve a valid Section 21 notice if this requirement has not been adhered to.
Any gas check that falls during the period of the tenants occupancy, must be carried out with a copy of the certificate given to the tenant no more than 28 days after the check was carried out.
It is prudent for tenancy agreements to contain a specific clause requiring the tenant to give access to the agent or landlord when required, for necessary gas or other utility safety checks, as well as repairs, improvements and other work deemed necessary. The reference to Ground 12 of the Housing Act 1988 could also be within the tenancy agreement, giving the tenant prior notice that a Section 8 notice seeking possession will be served and possession proceedings commenced should the tenant fail to allow access to the property in breach of the clause requiring tenants to give access. It is unlikely that a Judge would make an outright possession order for failure by the tenant to allow access for the gas safety to be carried out, but it is extremely likely that a Suspended Possession Order can be obtained whereby the threat of an outright possession order is made should the tenant fail to give access in, say, 14 days of the date of the Order. Certainly a costly way of gaining access for the landlord, but a way in which a landlord and agent can ensure compliance of their obligations and duties. Communication records must be kept in relation to attempts to gain access to the property, failed responses from the tenant etc so that this evidence is available for court if required.
The Gas Regulations (Reg 36) is the regulation that affects landlords the most. See Gas Reg 36 for fuller details of the landlords duties.

 

ENERGY PERFORMANCE CERTIFICATE
The EPC must be given to the tenant (free of charge) ideally prior to the start of the tenancy, alongside the Gas Safety check (if gas applies). Although there are no current court cases which find that an EPC should be given to the tenant prior to the contract starting, which may deem a section 21 invalid, it may be good housekeeping to do so, in order to avoid future issues. Failure to provide the tenant with a valid EPC will prevent the agent/landlord from serving a valid Section 21 notice.

 

NEW HOW TO RENT GUIDE – MAY 2019
To coincide with the Tenants Fees Ban and the new Section 21 notice, a revised How to Rent Guide has been published and must be given to all tenants before a section 21 notice can be served.
https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/806216/6.5707_MHCLG_How_to_Rent_v4.pdf

Frustratingly, the How to Rent Guide says that a Section 21 notice served on a tenant will not be valid unless an up-to-date version How to Rent Guide has been given to the tenant.
The belts and braces approach would be just before serving a Section 21 notice, to check the How to Rent Guide on the government website to see if it has been updated since the last one was given to the tenant. If it has changed, serve the new version on the tenant, wait a few days and then serve the Section 21 notice (6A).

DEPOSIT PRESCRIBED INFORMATION
An agent/landlord cannot expect, rely on, or assume, the Deposit Scheme to give the tenant the necessary Prescribed Information, neither can they rely on providing the tenant with a link to the Prescribed Information advising the tenant to download their own version.
The Deposit Prescribed Information should be printed in full, and given to the tenant, by the landlord or agent within 30 days of the protection of the deposit (the same 30 days when it was received).
Some deposit schemes provide for Leaflets, Terms and Conditions, Certificates which form part of their Prescribed Information. Up to date versions of these must be given to the tenant. Out of date versions will deem the Prescribed Information invalid.

 

See notes above regarding executing the document by a company and offering to the tenant to check and sign.
 
THE TENANT FEES ACT
The Tenant Fees Act came into force on 1 June 2019 and applies to all new Assured Shorthold Tenancies and will apply to all renewals where the tenancy becomes a new fixed term from 1 June 2019. For existing tenancies there is a transitional period ending 31 May 2020. From 1 June 2020 the Act will apply to ALL Assured Shorthold Tenancies regardless of when they started. All payments imposed on a tenant are prohibited, however they are labelled, unless the payment is expressly permitted under the Tenant Fees Act.
It is said that the purpose of the Act is to prevent landlords and their agents from requiring tenants to make any payment as a “condition” of granting, renewing or continuing a tenancy apart from the following payments:-
* Rent
* A capped refundable Tenancy Deposit
* A capped refundable holding deposit;
* Payments in the event of a default (loss of key and interest on late/missed payments);
* Payments on variation, assignment of a tenancy;
* Payment on termination (surrender) of a tenancy;
* Payments in respect of Council Tax;
* Payments for utilities;
* Payment for t.v. licence;
* Communications services (telephone);
* Green deal change.

REPAIRING OBLIGATIONS
Homes (Fitness for Human Habitation) Act 2018
Time should be taken by all agents and landlords to ensure they are up to date in relation to the obligations imposed on landlords in relation to The Homes (Fitness for Habitation) Act 2018 and the enforcement action which can be taken by Local Housing Authorities, that can result in serious costs against a landlord, especially if tenants are successful in obtaining legal aid.
This Act and the obligations of a landlord extend to common/shared parts and neighbouring properties affected directly by hazards/disrepair from the property.
It is known that “ambulance chaser” style law firms are targeting tenanted properties, offering no win no fee arrangements to tenants in relation to repairs/disrepairs claims, offering legal services to tenants who may have noticed, experienced or have a defect at the tenanted property (internally or externally), however small. These claims are spreading throughout the North and whilst most of the cases are tenants of social housing it is only a matter of time before a higher proportion of the private sector properties will be taking these firms up on their no win no fee arrangement.
The repairing obligations extend to “keeping in proper working order”, not just “repairing” obligations.

 

Section 47 and Section 48 of Landlord & Tenant Act 1987
Under Section 48 of the Landlord & Tenant Act 1987 a landlord must provide the tenant with an address in England or Wales, where notices can be served. The address can be that of the letting agents, if required.
However, under Section 47 of the Landlord & Tenant Act 1987 a landlord has a duty to provide the tenant with his/her address (not a third party address) so that the tenant can identify the landlord. This address must be the address where the landlord resides, or in the case of a company it must be their registered office address, or an address where they carry on their business.
Cases are being challenged on this point where claims are issued, or Section 8 notices served and a landlord has not given a tenant his home/business address, regardless of whether or not this should only apply to a leaseholder / freeholder relationship.

 
The above information is a brief guide on recent changes and happenings. Full legislation should be taken into account and understood by agents and landlords relating to these matters before conducting any action.
Training Courses are available on all topics above, or tailor-made topics of your choice, at very reasonable costs, where the trainer can come to you, allowing minimal disruption and a more cost effective way of updating your team.
 
Contact Julie Herbert – julie@landlordlitigation.co.uk

Copyright FCC Paragon - All rights reserved. Company Registration No. 3176719. Company VAT No. 880 9883 64

We are authorised & regulated by the Financial Conduct Authority. Our Firm Reference No. is 304595. Our Consumer Credit Licence No. is 647394.

Calls cost 7p per minute plus your phone company's access charge.