Rossendale Borough Council

Housing

Help and Advice for Private Landlords

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Tenants can have various rights, depending on when their tenancy agreement was signed. This guide concentrates on assured short hold tenancies (ASTs). All Tenancies signed after 28 February 1996 are ASTs unless you served notice stating that the tenancy was granted as an assured tenancy.

What is a tenancy?

A tenancy is an agreement between a landlord and a tenant. By signing a tenancy the landlord agrees to give their tenant exclusion possession of their property. This means that the tenant has a legal right to repossess the property. This differs from a license or lodging agreement where the licensee only has permission to occupy the property. In order for a tenancy to be created, the tenant must pay rent and the tenancy must be granted a term.

Changes to Assured Shorthold Tenancies (AST) from 1st October 2015

With the new Deregulation Act 2015 some important changes are coming into force on 1st October 2015 regarding section 21 notices, and landlords’ further responsibility to tenants. The rules really affect ASTs (‘assured shorthold tenancies’) that begin on or after 1st October 2015.

 

For ASTs starting before 1st October 2015

In relation to serving Section 21 Notices:

• Landlords can still serve a section 21 notice at any time during the tenancy

• There is no change to the form of the section 21 notices you use

• There is no time-limit after which a section 21 notice expires – unless you give your tenants a new fixed term tenancy, or arguably if you change the terms and conditions of the tenancy, for example by increasing the rent

The above rules for older tenancies will change in October 2018 to the rules set out below –

 

For ASTs starting on or after 1st October 2015

Importantly, remember that for ASTs that begin on or after this date, you now need to provide the following documents to tenants at the start of each fixed term tenancy:

• Gas appliance safety certificate

• An energy performance certificate (EPC)

• The government’s document called ‘How to rent: The checklist for renting in England’ https://www.gov.uk/government/publications/how-to-rent

 In relation to serving section 21 notices:

• Landlords can only serve a section 21 notice after 4 months of the first tenancy

• The form of the section 21 notice has to be in the new ‘prescribed form’ (available online before 1st October 2015)

• 6 month limit after which a section 21 notice expires, at the present time running from the date of service

• Any health and safety improvement notice served by the local authority means no section 21 notice can be served for 6 months

Access

As the tenant has been granted exclusion possession of the property, they are able to exclude whoever they choose from the property. This includes their landlord. As a landlord you have the right carry out repairs in line with your legal duties. However you should agree a mutually convenient time to arrange access. Always give your tenant at least 24 hours notice. Except in an emergency, you should never let yourself into the property without your tenant’s consent as this could be construed as harassment.

Complaints about the property from 1st October 2015

Any complaint in writing from the tenant about the condition of a property has to be responded to within 14 days. The landlord has to set out in his reply:

• What he intends to do

• The timeline for doing the repair work

If the landlord then either:

• Fails to reply to the written complaint,

• Gives an inadequate reply, or

• Serves a section 21 notice

The tenant can complain to the local authority who must inspect the property. If the local authority inspects the property it can:

• Serve a remedial notice

• Carry out emergency remedial action

 

At this point the landlord’s rights to evict under section 21 will be held in limbo, since:

• No section 21 notice previously served will be valid

• No further notice may be served for 6 months

However, the landlord can still serve a section 8 notice, but given the repair issues, the tenant may take the opportunity to try and counterclaim to prevent possession and claim damages.

Smoke Alarms from 1st of October 2015

Each floor of each property requires a functioning smoke alarm from 1st October under The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 and Carbon Monoxide alarms in rooms where a solid fuel heating system is installed. Alarms must be tested at the start of every new tenancy. The regulations do not stipulate the type of alarm to be installed; rather, landlords should make an informed decision and chose the best alarm for their circumstances and property. Landlords who fail to comply with the duties outlined in the regulations may be subject to a civil penalty.

When the tenancy ends

When an AST ends, it becomes a periodic tenancy, both your rights and responsibilities and those of your tenant remain the same. At this stage you may choose to grant your tenant a new fixed term tenancy agreement, or you can let the tenancy continue on a legal periodic basis. If you wish to recover possession, you will need to follow the normal legal process.

Recovering Possession / Illegal Evictions

In order to recover possession of a property, you need to follow due legal process/ if you do attempt to evict your tenant or do something to force them to move without following legal process, you may be committing a criminal offence under the Protection from Eviction Act 1977. The Council has legal powers to prosecute landlords and will always seek to recover costs. Your tenant may also be able to take a civil action against you.

A person who is convicted by magistrates of an offence may have to pay a maximum fine of £5000 or be sent to prison for six months or both. If the case goes to the Crown Court the punishment can be prison for up to two years plus an unlimited fine.

As a landlord you have a mandatory right to recover possessions under section 21 of the Housing Act 1988. Your section 21 notice must be for at least 2 months. In writing and properly served to the tenant. If your tenant is still ion the fixed term of their tenancy you check that the contract allows you to serve notice. You cannot recover possession through section 21 until at least 6 months after the tenancy start date. Legally you tenant does not have to leave the property after the expiry of the section 21 notice. If they do not leave, you will have to enforce the notice through the courts by obtaining possession order and a bailiff’s warrant.

You cannot recover possessions through section 21 if you fail to protect your tenant’s deposit correctly or you are operating an unlicensed House in Multiple Occupation.

Section 8 of the Housing Act 1988 allows landlords to recover possession of the property for a variety of reasons. There are 17 grounds under section 8 and the majority of these are discretionary. However, ground 8 grants you a mandatory right to possession if your tenant is a t least 2 months in arrears (monthly rent payment) at the time the notice is served and at the time of any court hearing. The notice requirement under section 8 ground 8 is 2 weeks.

Changes to Tenancy Deposits from 1st October 2015

If a landlord took a deposit after 6th April 2007 but missed the deadline to get it registered by 23rdJuly 2015, then this is how the law stands.

If the landlord has not registered a deposit in a government-backed deposit scheme within 30 days of receiving the money, the landlord has to return the deposit money to the tenant immediately, as until the landlord does so they cannot serve a Section 21 Notice.

If the prescribed information relating to the deposit has not been given to the tenants and any other relevant persons within 30 days of the deposit being received, then the landlord cannot serve a section 21 notice. (‘relevant person’ presumably means guarantors, or anyone who helped pay for the deposit).

However, so long as the deposit money has been put into a scheme within 30 days, the ‘prescribed information’ relating to the deposit can be served at a later date, which then allows the landlord to serve a section 21 notice.

Do not expect the deposit scheme to provide the ‘prescribed information’ to the tenants, whatever the scheme suggests it might do. It is the landlord’s explicit responsibility to make sure all relevant persons receive the prescribed information. If in any doubt whatsoever, serve the documents yourself, keeping good evidence of having done so.

Also check with the scheme what documents constitute the prescribed information. The website of one deposit scheme is far from clear what documents to use. If you are not clear, ring the scheme.

Notwithstanding these difficulties over section 21 notices, any deadlines for compliance with the rules that are missed mean that the landlord will be liable to the tenant for between one and three times the amount of the deposit, should the tenant bring a claim, or a counterclaim.

If you take a deposit from your tenant you are legally required to place it in one of three government approved deposit protection schemes:

·         Deposit Protection

·         My Deposits

·         Tenancy Deposit Scheme

You must do this within 30 days and inform your tenant giving them the following prescribed information;

·         The address of the rented property.

·         How much deposit you have paid.

·         How the deposit is protected.

·         The name and contact details of the tenancy deposit protection scheme and its dispute resolution service.

·         Their (or the letting agency’s) name and contact details.

·         The name and contact details of any third party that has paid the deposit.

·         How to apply to get the deposit back.

·         What to do if you cannot get hold of the landlord at the end of the tenancy.

·         What to do if there is a dispute over the dispute.

Your deposit protection scheme will provide guidance and a standard template for this.

You must ensure that you reissue the prescribed information whenever a tenancy become periodic or you grant a new agreement

You must return the deposit within 10 days of you and your tenant agreeing any deductions. Should there be a dispute use the resolution service offered by your protection scheme. This will require both to provide evidence and the decision provided by the resolution service will be final.

It is a legal requirement to place a deposit into a protection scheme. A tenant can claim compensation of up to 3 times the value of the deposit if it is not protected. Landlords cannot recover possession of their property through section 21 if they fail to protect the deposit.

http://www.rossendale.gov.uk/download/downloads/id/401/tenancy_deposit_protection_scheme

 

Retaliatory Eviction

Tenants in the private rented sector will be protected from being evicted by their landlord simply because they have made a legitimate complaint about the condition of the property. Where a tenant has made a complaint to their landlord, and a local authority has confirmed that a repair needs to be carried out to prevent a potential risk to health and safety, the landlord will not be able to evict the tenant for 6 months.

A landlord will also be prevented from evicting a tenant where they have not complied with certain legal obligations such as supplying Gas Safety Certificates and Energy Performance Certificates. This restriction would be lifted as soon as these documents are provided. It will no longer be possible to serve a section 21 eviction notice at the start of a tenancy and landlords will have to wait a minimum of four months before they can serve an eviction notice.

Comes into Effect: 1 October 2015

For further information please see the full Acts and accompanying explanatory notes for the Act, available at: http://www.legislation.gov.uk/

 

The Redress Scheme Requirements

From the 1 October 2014, it is a legal requirement for all lettings agents and property managers in England to belong to a Government approved redress scheme.

The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 was introduced under Part 6 Enterprise and Regulatory Reform Act 2013 as part of the Government proposals to improve standards in the private rented sector.

Who does it apply to?

The order applies to those involved in one of the two types of property work;

• Letting agency work; and

• Property management work

If you are not clear whether the requirement applies in your individual circumstances, you should seek legal advice.

What is Letting Agency Work?

Lettings agency work is work by an agent in the course of a business in response to instructions from a landlord who wants to find a tenant, or a tenant who wants to find a property in the private rented sector. Please look at the Government Guidance for more advise on who this covers here.

What is Property Management Work?

Property Management Work means things done by the person in a course of a business in response to instructions from another person who wants to arrange services, repairs, maintenance, improvement, or insurance or to deal with any other aspect of the management of residential premises. Please look at the Government Guidance for more advice on who this covers here.

What are the three approved schemes?

The Ombudsman Services Property Scheme www.ombudsman-services.org/property.html

Property Redress Scheme http://www.theprs.co.uk/

The Property Ombudsman http://www.tpos.co.uk/

Failure to join the scheme

If an Agent does not join a Government approved redress scheme they can be subject to a £5,000 fine from the local authority and if they continue to breach their legal requirement to join such a scheme they can ultimately be closed down.

To view the Council’s Redress scheme follow http://www.rossendale.gov.uk/info/200077/private_housing/256/private_rented_sector