Deregulation Act and Retaliatory Evictions

No doubt everyone who reads this blog is getting sick of the whole sea change of regulations due to come into force on 1st October. It seems no time at all since March and the passing of the Deregulation Act 2015 when we all breathed a sigh of relief over deposits.

One part seems to be missed a little and may turn out to be one of the most important aspects for Landlords. That is Section 33, titled within the Act as “Preventing retaliatory evictions.” Whether we agree the concept exists or not this section will come into force on 1st October 2015.

So what does it involve and mean for landlords and agents?

In simple terms it is about ensuring let property is kept adequately repaired and maintained in compliance with section 11 of the Landlord and Tenant Act 1985. Nothing to worry about here you all shout, we are good responsible agents and landlords. However all is perhaps not as straight forward as you may think.
Whenever you receive a complaint in writing from a tenant regarding the condition of the property you must within 14 days give an “adequate” response in writing and in default a section 21 notice cannot be served. Whilst it refers to the complaint being in writing given there will inevitably be judicial consideration of these regulations we suggest that you ensure all complaints, no matter how minor, are clearly logged on your system and responded to. This means even when you have a telephone conversation with a tenant and resolve an issue in that conversation we would recommend that you confirm that conversation and what was agreed was your adequate response in writing or email so you have evidence of compliance. This may be overkill but better that than having a section 21 notice dismissed for lack of evidence of compliance on your part.
The next question is what is “adequate”. The Act provides limited explanation. It should provide an explanation as to what action the landlord is taking and the proposed timescales, clearly this will be subject to judicial interpretation. We think it means practically you need to show you are being pro-active in trying to resolve complaints and so if any doubt you must either go yourselves or send a competent person to inspect any reported problem on each and every occasion no matter how trivial they may appear. The response must set out the timescales in which you intend to undertake any remedial action. In effect it will be a report as to what was found, what you are going to do and when. Hence many firms are likely to develop a standard pro forma.
The section also provides that if the tenant is unhappy with your response he can complain to the local authority who may then serve a notice requiring works to be undertaken. If such notice is served then no valid section 21 notice may be served for 6 months from the date of that notice.
All the provisions provide that section 21 notices cannot be served after the actual complaint either by the tenant or service of the notice by the local authority. Arguably this does not effect earlier section 21 notices or situations where the tenant has complained to the local authority but they have not inspected either by the time of the service of the notice or the court proceedings. However practically we suggest that it is likely that where issues are raised this will inevitably either lead to accelerated claims being listed for hearings or adjournments being granted to ascertain if the local authority is taking action. Whilst there may be arguments to say that courts should not do this in our experience we think this will be District Judges response, at least until an upper court directs otherwise!
For private landlords there are limited safeguards and exceptions. These include if you can show the tenant has been the cause of the poor condition either from positively damaging the property or omission. Again the landlord will need to prove this. The other exception is if it can be genuinely shown the property is on the market for sale. Again we suspect very good evidence will be required by courts to prove this is the case and not just an attempt to get around the regulations.
It is vital therefore that those of you actively involved in property management look at your processes. Ensure it is 100% clear as how and to whom complaints of disrepair should be addressed and that your processes for dealing are clear. You may also want to remind landlords that just because a tenant complains is not a reason to serve a notice and in fact may no longer be possible. And finally as with, any of the other regulations sadly it will come down to judicial interpretation of the regulations and so for the time being there are many unanswered questions.

Filed under: England & Wales

Section 21 Prescribed Form amended already!

As many of you will have read there was concern as to errors in the first draft version of the prescribed Section 21 Notice issued by Government. As a result amendments have been rushed through for a New Section 21

The changes are modest but this is now the prescribed form which you should be using. We will be updating our document vault with this new version later today for our Helpline subscribers.

Filed under: England & Wales

New Prescribed Section 21 Notice is published

Hot on the heels of the smoke alarm debacle new regulations have been published prescribing the form for a section 21 Notice which must be used from 1^st October 2015. (The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. 

As the name suggests these only apply to England. We think the idea of a prescribed form is a good one as it will help avoid arguments over the wording of the section 21 Notice. Obviously it is concerning that there is such a short lead in time although we have been expecting the same for some months now. For most agents completing the form should cause little difficulty, particularly for those used to giving old style Section 21 notice.

The regulations do however refer to three, in effect, new requirements for service of a valid section 21 Notice. The Landlord or Agent will need to show that the EPC and Gas Safe Certificate was given to the Tenant. Practically we would suggest that additional copies probably should be served with the Section 21 Notice, thereby saving arguments. Agents will no doubt wish to draw this to Landlords attention and make clear without these documents they will not be able to use the non-fault Section 21 Notice.

Also there is an entirely new requirement. At the start of each tenancy (including renewals) you will need to serve “How to rent: the checklist for renting in England”. This will only be available in electronic form on the Gov.uk website and Landlords and Agents will be expected to download and print off this 8 page document for each tenancy.   As with prescribed information it is important agents can prove this was given although again you may wish to serve a further copy with any notice to avoid issues being raised. Plenty to look at and certainly going forward we expect the issuing of accelerated possession proceedings will be more difficult given the extra hoops required to prove which will inevitably lead to further changes to the relevant court forms.

The Regulations apply in their entirety only to ASTs that are granted on or after the 1 October 2015, but subject to section 4, which provides that the  new form must be used. Therefore we advise that the new form be used for all notices served as soon as the Regulations come into force, i.e. 1 October 2015.

Finally, we comment on the note 1 on the form itself, which seems to be intended to help people give the correct date for expiry. First the note advises the landlord to allow two extra days for service, without advising them to check the terms of their tenancy agreement, or to allow for weekends and public holidays.

Secondly the note refers to serving notice on a statutory periodic tenancy under s21(4). Following the rule in Spencer v Taylor   notice on  a statutory periodic tenancy may be given under section 21 ( 1) following the expiry of the fixed term. Section 21(4) applies where there has never been a fixed term, e.g. a contractual periodic tenancy from the outset, or where the term is expressed at the outset to continue on a contractual periodic basis, but neither of these are statutory periodic tenancies. The note does not make it clear that although a notice served under s21 (4) may not expire earlier than a notice to quit could,   a statutory quarterly  periodic tenancy ( under the current interpretation of the Housing Act 1988) may, in our view,  be brought to an end by giving  two months’ notice under Section 21 ( 1).

Filed under: England & Wales

Smoke Alarms and Carbon Monoxide Detectors and Recent Developments

We recently blogged on the proposed changes to a landlord’s safety requirements to provide smoke alarms and carbon monoxide detectors (see here ).

On Friday, the Department for Communities and Local Government (DCLG) published some guidance as to the implications for landlords. A full copy of the DCLG guidance can be found here

However last night the House of Lords refused to pass the Regulations saying there had been no consultation and agents and landlords did not have enough time to comply. The Regulations may therefore be modified regarding the date all properties must comply. However PainSmith Solicitors advise that agents and landlords ensure all properties comply by 01 October 2015.

In summary, in preparation for 01 October 2015 or the designated date, landlords of all rental properties (subject to a small number of exemptions – such as licenced HMO properties and properties where there is a resident landlord) will be required to do the following:

1. Install at least one smoke alarm on each storey of a rental property that is used as living accommodation. These alarms may be battery powered or hardwired. However check with the local authority as some may have local regulations which require more stringent conditions. The above requirement is for all rental properties not just those with tenancies beginning after 01 October 2015.
2. Install a carbon monoxide detector in any room that contains a solid fuel appliance which includes coal or wood burning fires and wood burning stoves. For information wood burning stoves installed since 2011 must already have a carbon monoxide detector and a certificate proving they have been safely installed. The certificate must be kept as it will be required upon sale of the property.
3. Currently gas appliances are not covered by the above Regulations but we strongly advise that carbon monoxide detectors are installed in properties powered by gas appliances or oil fired appliances. We anticipate the gas safe regulations may be amended at some stage to require this in the future. Again, to emphasise installation of carbon monoxide alarms is a requirement for all rental properties with solid fuel appliances not just those with tenancies beginning after 01 October 2015.
4. Carry out testing to ensure that all smoke and carbon monoxide alarms are in working order at the start of each new tenancy commencing on October 1 2015 or thereafter. There is no requirement to check existing alarms in tenancies that are continuing or renewed. Landlords should keep evidence of the testing for example as an entry on the check in report or inventory preferably signed by the tenant or their representative.
5. Include a term in tenancy agreements requiring tenants to check the alarms at least once a month to ensure all smoke alarms and carbon monoxide detectors remain working, to replace batteries where necessary and to report any other faults to the landlord.
6. Include a clause requiring landlords to install smoke alarms and carbon monoxide detectors in the Terms of Business and imposing a liability on the landlord to ensure the smoke alarms and the detector are in working order at the start of a tenancy and throughout the tenancy if the property is not managed by the agent.

There will be no grace period for compliance with the Regulations after 01 October 2015 if the Regulations are passed by Parliament.

Filed under: England & Wales

Another successful enfranchisement

Today we completed yet another successful freehold acquisition!

David Whitney and his team acted throughout in putting together with, a steering group of residents, a claim for enfranchisement of a development of two blocks of flats, various freehold houses and associated grounds comprising over 70 units. PainSmith worked with the steering group to ensure more than the minimum number of leaseholders were interested. After this they prepared the necessary participation agreements and served the required notices.

PainSmith worked with the resident’s valuer to deal with various issues over the premium necessary and settled all the necessary legal documentation. The acquisition opens the way for those taking part to grant themselves valuable lease extensions and help in ensuring the ongoing good management of their estate.

If you are thinking about possible acquisition of your freehold or lease extensions please contact David Whitney for a without obligation discussion of your options.

PainSmith Solicitors are proud members of the Association of Leasehold Enfranchisement Practitioners

Filed under: England & Wales