The Government has made many changes over the last few years in an effort to try to protect tenants from unscrupulous landlords. Many residential landlords will take the view that these changes for Assured Shorthold Tenancies provide far too much protection to tenants and go so far as to provide an easy way for tenants to avoid paying rent and remain in occupation. Although it is not covered in this article landlords should also be aware of the potential fine it may face if it fails to check the immigration status of its tenants.
A Brief Summary of the Recent Changes for Assured Shorthand Tenancies
In particular there has been the relatively recent requirement for a landlord to register the tenant’s deposit. In addition the landlord must within a short time frame confirm in writing certain details about where the deposit is being held. A failure by a landlord to take these steps may have very serious consequences.
A landlord may be required to pay a fine of up to three times the deposit and is unable to serve a Section 21 Notice bringing the tenancy to an end. One possible way to get around the restriction on serving a S21 Notice is for the landlord to return the deposit to the tenant prior to serving the notice. A difficulty arises where the deposit is held in a Tenant’s Deposit Scheme and the scheme requires the tenant’s consent to release the deposit. Often the tenant will refuse to allow the release of the deposit where it knows that it would then be served with a Section 21 Notice bringing its tenancy to an end.
The case of Superstrike Ltd v Rodrigues at the end of last year created further confusion. It required at the end of a fixed term tenancy, where a tenant remained in occupation and the tenancy converted to a periodic tenancy that a landlord had to re-protect the deposit and re-serve the prescribed information.
Landlords can now breathe a small sigh of relief as the Deregulation Act 2015 (“the 2015 Act”) has clarified matters slightly.
- A tenant’s deposit does not now need to be re-protected at the end of the fixed term assuming that the deposit remains covered in the existing scheme.
- A Section 21 Notice does not need to end on the last day of a period of the tenancy. The Notice must only comply with the provision on how much notice is necessary, for example if bringing to an end a monthly tenancy then 2 months’ notice is required.
- From 1 July 2015 a new Section 21 Notice.
Further changes are coming into effect for Assured Shorthold Tenancies under the 2015 Act. These are as follows:
For all tenancies granted on or after 1 October 2015 (although from 1 October 2018 this will apply to all tenancies regardless of their commencement)
- A restriction on the landlord’s ability to serve a Section 21 Notice where a tenant has made a complaint about the condition of the property.
- A restriction on the landlord’s ability to serve a Section 21 Notice unless the landlord has provided the tenant with all of the following:
- ‘an energy performance certificate’;
- ‘a copy of the gas safety certificate’;
- The Department for Communities and Local Government booklet’: ‘How to Rent: The Checklist for Renting in England’.* This must be the current version at the time the tenancy is entered into. A Landlord may wish to keep a copy of the version sent.
*It is not clear from the legislation whether the requirement to provide the ‘How to Rent’ booklet will apply from 1 October 2018 to tenancies granted before 1 October 2015. It is therefore advisable to provide tenants with this booklet prior to 1 October 2018.
Applicable to all Assured Shorthold Tenancies regardless of when it was entered into
- A Section 21 Notice cannot be served until 4 months after the commencement of the tenancy.
Restrictions on Serving a S21 Notice
Of biggest concern to a landlord is the restriction that a landlord may not serve a Section 21 Notice where prior to the service of a Section 21 Notice a tenant has made a complaint in writing regarding the condition of the property. A landlord will be prevented from serving a valid s.21 notice in the following circumstances:
- Where the landlord did not provide a response to the complaint within 14 days beginning with the date on which the complaint was given; or
- Where the landlord provided a response to a complaint but that was not an adequate response; or
- the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord; or
- the relevant local housing authority served the relevant notice in relation to the property in response to the complaint.
The reference to an adequate response by the landlord requires the landlord to respond in writing and provide a description of the action the landlord proposes to take to address the complaint. This must set out a reasonable timescale within which the action will be taken. The difficulty faced by landlords here is that if a tenant wishes to remain in a property and suspects that the landlord may take steps to bring the tenancy to an end all it needs to do is put the landlord on notice of a potential complaint and make the necessary referral within the time specified to the local housing authority. No doubt the local housing authority will have a considerable number of complaints to deal with and its response times will not be quick. This will serve to delay matters for a significant period of time where the landlord is prevented from bringing the tenancy to an end.
The Requirement for Smoke and Carbon Monoxide Alarms
In addition to the above there is a proposal which may come into force in early October 2015 which will require landlords to install smoke alarms on every floor of their property, and Carbon Monoxide Alarms in high risk areas such as where there is a solid fuel heating system. Please see our note on this for more information.
To find out more please contact – Karen Bright 020 7631 4141 or email firstname.lastname@example.org.