Legislative changes from 1 October 2015 – A Landlord’s practical guide
As of the 1st October 2015, Landlords will face a number of changes due to the effect of the snappily entitled “Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015”. To help you keep up to date with these changes this guide provides practical assistance to make sure you are compliant.
AT THE BEGINNING OF THE TENANCY
Will it apply to my property...?
The changes apply to all types of tenancies and licenses, there are a few exceptions such as lodgers with a live in Landlord, HMO’S, long leases and hostels. The full list can be found here.
What documents should I now provide at the beginning of the tenancy…?
An energy performance certificate;
A gas safety certificate
A copy of the government ‘How to rent’ leaflet
A tenancy agreement*
The deposit protection prescribed information PLUS any additional leaflets they may annex
A mutually agreed Inventory about the condition of the property and its contents.*
These documents can be provided to the tenant via email with their permission. A signed copy of receipt is also sufficient.
*advisable but not mandatory
What other provisions should I now put in place…?
Smoke and Carbon Monoxide Alarms -Changes are afoot in this area, so keep your eyes peeled on the upcoming government legislation website for the finalisation of the statutory requirements. The current draft can be found here and the result will likely reflect this.
What do I have to do….?
A smoke alarm is fitted on each storey where there is living accommodation;
A carbon monoxide alarm is fitted in all rooms used as living accommodation that contain a solid fuel combustion appliance;
These alarms are checked on the first day of each new tenancy.
Note that a toilet or bathroom will be treated as living accommodation.
What happens if I don’t…?
You might be subject to a remedial notice and a maximum of £5,000 fine. Although there is a process to appeal, better to be safe than sorry.
CHANGES DURING THE TENANCY
Disrepair – Deregulation Act 2015
If a tenant makes a written complaint about the condition of the property you must give an adequate response to the complaint in writing within 14 days of receipt. Within your response you must include your proposals of how you will deal with the issues along with an estimated timescale for works to be carried out. Failure to follow this proceedure will make it difficult to evict the tenant using a s.21 notice.
CHANGES AT THE END OF THE TENANCY
What form should a notice take?
There is now a prescribed form of s21 which can be found at page 4 here. This is the form that MUST now be used.
There is also a new prescribed form for Section 8 notices which has been required from 7 April 2015 and can be found here.
When can I issue a s.21?
Not in the first 4 months of the tenancy, therefore you can now NOT issue a s.21 annexed to the tenancy agreement.
The s.21 now does not need to expire on the last day of the rental period.The two months can expire on any point. The landlord is therefore required to repay the tenant pro rate the unused proportion of any rent paid in advance and not used.
How do I issue a s.21?
If sending the s.21 by post, you must allow 2 days for 1st class service. Therefore you notice period will be 2 months and 2 days.
Personal service is still allowed, although evidence of service is sensible, such as filling out a certificate of service and keeping this on file. If you are anticipating problems consider using a process server.
How long can a s.21 be relied on?
The s.21 was be enforced within 6 months of being issued – so use it or lose it.
What is a retaliation or revenge eviction?
This is where Landlords use s.21 notices to evict tenants in retaliation for complaining about the condition of the property. An aim of the deregulation act was to prevent Landlords from doing this.
What happens if I serve notice after my tenant has complained of disrepair?
If a Landlord serves a s.21 notice in response to a complaint, the tenant can now report the matter to the local housing authority. The council have also been given the power to serve an enforcement or improvement notice on the landlord setting out the ‘reasonable timescale’ for improvement.
When can I serve a s.21?
6 months after the date of the improvement notice or if that notice was later suspended, 6 months after the suspension.
When can I not serve a s.21?
If the tenant complained in writing about conditions and the Landlord did not respond within 14 days or the response was not adequate.
You cannot serve immediately following a complaint, if you do it will be invalid
Things to watch out for:
The ‘How to rent’ booklet – This little booklet is the difference between a valid s.21 and another 2 months’ notice. The booklet will be updated now and again and posted on the government website. It is essential that the most up to date copy is given to the tenant before the new tenancy starts. If there has been no updated edition, there is no provision to say that you must reissue the same edition of booklet if the tenant wishes to remain in the property. A belt and braces approach seems prudent however, and it may be advisable, regardless of whether there has been an update or not to reissue the booklet every time you provide a new Tenancy. This provision doesn’t apply for each month of a periodic tenancy. The likelihood of some slip ups here seem inevitable, so its important you keep an eye on yours and your agents documentation.
Use the right form and get the date right – It would be incredibly unwise to wander from using any form for your s.21 or s.8’s which was not taken directly from the government website. When drafting, make sure you correctly identify the last day of the tenancy. If the tenancy started on the 2nd of the month the last day is the 1st.
6 months fixed term - Some simple maths tells us that if we can’t serve a s.21 in the first 4 months and the notice period is 2 months (or 2 months and 2 days with postage), the tenancy cannot expire on the last day of a 6 month fixed term and will expire a few days after the end of the 6 month period – this is correct, if not seemingly irrational.
If you would like to know more about this topic or our legal services please contact our Property Litigation department on +44 (0)20 7235 8000
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