Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • G_M
    • By G_M 19th Feb 15, 5:13 PM
    • 49,656Posts
    • 61,660Thanks
    G_M
    Tenancies in Eng/Wales: Guides for landlords and tenants
    • #1
    • 19th Feb 15, 5:13 PM
    Tenancies in Eng/Wales: Guides for landlords and tenants 19th Feb 15 at 5:13 PM
    This thread is intended to provide information to both landlords and tenants relating to Assured Shorthold Tenancies (ASTs) in England and Wales.

    Topics covered:

    * Repairing Obligations: the law, common misconceptions, reporting/enforcing, retaliatory eviction & the new tenant protection (2015)

    * Deposits:
    payment, protection and return

    * Ending/renewing an AST: what happens when a fixed term ends? How can a LL or tenant end a tenancy? What is a periodic tenancy?

    * Rent increases: when & how can rent be increased?

    * Repossession: what if a LL's mortgage lender repossesses the property?

    * New landlords (1):advice & information :see links in next post

    * New landlords (2): Essential links for further information

    * Letting agents: how should a landlord select or sack?

    * Lodgers: advice & links for landlords & lodgers


    Please feel free to PM me if you spot errors (whether legal or typos!). Also omissions, or suggestions for improvement.

    ---------------------------------------------------------------------------------------------------

    An
    Assured Shorthold Tenancy (AST) can exist in 3 forms:

    1) Fixed Term Tenancy. This has a start date, and either a 'Term' (eg 6 months, 12 months), or a specified end date. The Term can be any length from a few days to 7 years, although

    i) a landlord cannot obtain possession via the courts in the first 6 months, meaning LLs rarely agree to offer Terms of less than 6 months, and

    ii) a tenancy with a Term over 3 years must be Executed as a Deed.

    2) Statutory Periodic Tenancy. This is created by statute (law) automatically when the fixed term ends, if the tenant does not leave, and if no other agreement exists (eg 1 above or 3ii below). 'Periodic' means it continues on a 'rolling' basis (usually monthly, but sometimes weekly or quarterly).

    3) Contractual Periodic Tenancy. This can be created either:

    i) from the start (ie the initial contract specifies a 'rolling' tenancy - there is no fixed term), or

    ii) at the end of the fixed term, if that is what the original contract specified would happen when the fixed term ended.
    Last edited by G_M; 30-05-2019 at 5:54 PM. Reason: length of fixed term
Page 1
    • G_M
    • By G_M 19th Feb 15, 5:14 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #2
    • 19th Feb 15, 5:14 PM
    Repairing Obligations, & Retaliatory Eviction
    • #2
    • 19th Feb 15, 5:14 PM
    There is considerable advice on the Shelter website here.

    CONTENTS
    A) Statutory Repairing Obligations
    B) Contractual Obligations
    C) Common Misconceptions
    D) Reporting & Enforcing
    E) Retaliatory Eviction



    A) Statutory Repairing Obligations

    1) The
    Landlord & Tenant Act 1985 Ss 10 & 11 state:
    10 Fitness for human habitation.

    In determining for the purposes of this Act whether a house is unfit for human habitation, regard shall be had to its condition in respect of the following matters;

    repair,
    stability,
    freedom from damp,
    internal arrangement,
    natural lighting,
    ventilation,
    water supply,
    drainage and sanitary conveniences,
    facilities for preparation and cooking of food and for the disposal of waste water;

    and the house shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.
    Repairing obligations
    11 Repairing obligations in short leases.

    (1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor;

    (a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

    (b)to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

    (c)to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

    2) The
    Housing Act 2004 provides for enforcement of standards. See:

    Chapter 1 Enforcement of housing standards: general

    Chapter 2 Improvement notices, prohibition orders and hazard awareness notices

    Chapter 3 Emergency measures


    3) The Housing Health & Safety Rating System, provides guidance for landlords following the Housing Act 2004 on how Local Authorites use a risk assessment approach called the
    Housing Health and Safety Rating System (HHSRS). This HHSRS does not set out
    minimum standards. It is concerned with avoiding or, at the very least, minimising
    potential hazards.

    4) There are also general Health & Safety regulations, for example

    a) Gas installations must be safe, and tested annually. See :
    The Gas Safety (Installation and Use) Regulations 1998

    b) Electrical installations must be safe

    c) ??


    B) Contractual Obligations

    The contract may also provide additional obligations on the landlord. This could be either by writing them into the tenancy agreement, or verbally if the tenant was promised something, although this of course is much harder to prove later. However the contract cannot remove any of the statutory obligations outlined above.

    Tenants signing a new contract are advised to get confirmation in writing of any promise a landlord makes to repair or improve the property before they agree to the tenancy.

    C) Common Misconceptions about LL's Obligations

    1) It is commonly believed that if an item is listed on the inventory (eg a fridge, washing machine etc) the landlord must repair it if it breaks down. However the
    Landlord & Tenant Act 1985 explicitly excludes this ("but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity"). So unless the contract states that the landlord will repair, he does not have to.

    The tenant's options therefore are:

    a) repair it himself at his own cost
    b) politely ask the LL to repair it and rely on his goodwill
    c) leave it unrepaired and manage without
    d) buy a replacement and dispose of the broken item
    (with the LL's written consent), and leave the new one at the end of the tenancy
    e)
    buy a new one to keep when the tenancy ends, and either i) store the broken one to leave behind or ii) dispose of the broken one (with the LL's written consent).

    2) Damp is a common problem and tenants often believe it is the LL's responsibility to either eradicate it and/or pay compensation for damage to the tenant's belongings and/or compensate for health problems.

    This may be true if the damp is caused by property defects. See Section A above. However damp is also frequently caused by the tenant's lifestyle; altering this may eradicate the damp, and clearly that is not the LL's responsiblity. Typical actions which cause excessive damp include:

    a) drying clothes indoors especially on radiators
    b) cooking and washing without opening windows/ventilating
    see also links below for advice.

    3) Tenant-like manner
    There is an implied term in all tenancies that tenants will act in a 'tenant-like' manner. Obviously that means not causing damage to the property, but it also means doing routine everyday maintenance that any householder would reasnably expect to do, and reporting damage and defects so that the LL is aware and can repair. If, for example, the tenant fails to report a leaking roof and this results in ongoing water damage, the tenant can be held responsible for the resulting costs of that unreported water damage (though not the original roof issue).

    D) Reporting & Enforcing Repairs

    The
    Landlord and Tenant Act 1987 says that a landlord must provide a tenant with an address in Eng/Wales for serving notices. If such an address is not provided in writing, rent does not have to be paid. Tenants should always use this address to report repairs.

    Steps &/or options:
    1) for a speedy response: ring, text, email, twitter, visit, or use whatever communication method is available to the landlord or his agent

    2) Write a letter. This should nearly always be done.
    a) with a minor issue, & where step 1 above has resulted in an immediate resolution, fine - stop there.
    b) Otherwise, always write. Use the address provided "for serving notices" (usually on the tenancy agreement).

    By writing, you:

    a) help focus the LL/agent on the issue
    b) put on record your earlier conversation, text etc, and the LL/agent's reply
    c)
    put on record the problem, which is an important step if firmer action is needed later
    d) put it on record in case it arises during the check-out when the tenancy ends
    e) protect yourself from retaliatory eviction (see below) if the tenancy started/was renewed after 1/10/15

    3) Report issues to Environmental Health (or the Tenancy Officer etc) at the council. Note that they tend to be understaffed/overworked. You should only report to them if either

    * you've already written to the landlord and he's failed to respond/take action, or
    * there is an immediate H&S issue

    4) In some cases you can get repairs done yourself, and then deduct the cost from rent. However there is a strict process to follow, involving multiple letters. You must follow the process exactly (
    See Shelter here for full information).


    E)
    Retaliatory Eviction

    Retaliatory or revenge eviction is when a landlord tries to evict a tenant after they ask for repairs or complain about conditions in the property.

    The
    Deregulation Act 2015 (S33) protects AST tenants if their tenancy either started, or was renewed, after 1/10/15. Any S21 Notice (the 1st step in eviction) is invalid if

    i) the tenant has reported an issue to the LL and
    ii) the tenant has complained to the council and
    iii) the council has inspected and
    iv) the council has issued an improvement notice to the LL

    If all the above steps have taken place, the LL cannot serve a valid S21 Notice, and any already served S21 becomes invalid.

    If the landlord serves a (valid) S21 Notice following the original complaint from the tenant (step i above), and then steps ii) to iv) take place, the S21 Notice cannot be enforced even though it may have been valid when it was served.

    For more, see
    Shelter here.


    F) References

    Landlord & Tenant Act 1985 (s10 Fitness for human habitation & s11 Repairing obligations)

    Landlord and Tenant Act 1987 (s48: Address a tenant should use for notices/letters to the landlord)

    Housing Act 2004

    The Housing Health & Safety Rating System

    Deregulation Act 2015 S33 (Preventing retaliatory eviction)

    Shelter (Repairs in private rented homes - general advice)

    Shelter ( claiming back cost of repairs via rent)

    Shelter (new protection from retaliatory eviction)

    HSE (Gas Safety Certificate rules)


    The Gas Safety (Installation and Use) Regulations 1998

    ESC (Electrical Safety Council - Rules)

    The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (from 1/10/15)

    How to rent (mandatory government leaflet)

    The tenantsvoice (damp advice)

    Bitesize Guide for Damp and Mould


    Suggestions welcome on corrections or additonal content needed.

    Last edited by G_M; 01-11-2018 at 10:16 PM.
    • G_M
    • By G_M 19th Feb 15, 5:15 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #3
    • 19th Feb 15, 5:15 PM
    DEPOSITS: payment, protection and return
    • #3
    • 19th Feb 15, 5:15 PM
    CONTENTS
    A) The leglislation
    B) What is a deposit?
    C) Do all deposits have to be registered?
    D) What if not registered?
    E) Claiming back a deposit;
    F) What deductions are valid?
    G) References

    (Applies in England/Wales)


    A) Deposit Protection Legislation

    Deposit registration was introduced by the Housing Act 2004, and then amended first by the Localism Act 2011, & then the Deregulation Act 2015, to correct various problems with the original Act. Only registered schemes can be used for protection.

    * Any security deposit paid by a tenant must be protected by the landlord in an approved scheme within 30 days of receipt.
    *
    Also within 30 days the landlord must give to the tenant:

    i) a
    copy of the deposit scheme certificate
    ii) the 'Prescribed Information' (see reference links below)
    iii) a scheme leaflet

    Note that since 1/10/15, landlords must also give tenants 'The Prescribed Information' defined in Statutory Instrument 2015 No. 1646. Note this is (confusingly) not the same as the deposit 'Prescribed Information'.

    This leglislation applies only to tenancies - it does not apply to 'Excluded Occupiers' (lodgers).

    B) What is a 'deposit'

    1) Holding Deposit

    A 'holding deposit' is often paid before the contract is signed so that the landlord stops advertising the property and holds it for the applicant. This does not have to be protected in a scheme. The Tenant Fees Act 2019 means that usually it is refundable when the contract is signed, or it may be put towards the initial rent. It may be kept by the landlord if the tenant changes their mind, as compensation for having taken the property off the market. See the link below for full detals. Since June 1st 2019, the maximum amount for a holding deposit is 1 weeks rent.

    A holding deposit is not the same as (but may be confused with) an admin or application fee ie to cover credit checks, referencing etc. but these can no longer be charged since June 1st 2019.

    2) Security Deposit

    A
    security deposit belongs to the tenant. It is money set aside, which can be used (subject to what the contract says) towards the cost of any tenant's debts relating to the tenancy, typically rent arrears, missing items or damage. It must be protected by the landlord in an approved scheme. The schemes can be found via the reference links below. Under the Tenant Fees Act 2019, since June 1st 2019 the maximum deposit amount is limited to 5 weeks rent.

    3) Advance Rent

    It is usual for rent to be paid monthly in advance. Occassionally a tenancy requires rent to be paid two months in advance. In either case, the money paid is rent, not a deposit, so does not need to be protected.

    The advance rent paid is not returned to the tenant at the end of the tenancy (if that were the intention, it would be a deposit), but the tenant does not need to pay rent covering any period leading up to the end of the tenancy for which advance rent has already been paid.

    In some rare cases, a tenancy requires advance payment at the start of the tenancy for the final months rent. There is some debate as to whether this constitutes a deposit (comments welcome) but providing it is rent as opposed to money which is returnable it does not need to be protected.

    C) Do all deposits have to be registered?


    Where a tenancy was created before
    6th April 2007 the deposit does not need to be registered in a scheme. However, if it is not registered, a valid S21 Notice cannot be served by the landlord unless it is first either returned or protected in a scheme.

    A
    ny tenancy created (whether fixed term or periodic) since 6th April 2007 requires the deposit to be registered & the PI served. This includes tenancies that existed before 2007 but where the fixed term was renewed, or became periodic, after 6th April 2007.


    Previous advice to
    landlords to re-issue the Prescribed Information each time a fixed term is renewed, or a periodic tenancy is created, is no longer applicable (Deregulation Act 2015).


    D) What if a landlord fails to register the deposit &/or provide the PI?

    Tenants should not rely on a clause in the tenancy agreement, or a verbal assurance by the LL/agent, stating the deposit will be or is protected. The tenant should have received the 'Prescribed Information' (see links below) confirming registration in a scheme.

    Sometimes tenants cannot remember receiving the PI, or mislay the PI. In that case, it is worth checking each scheme to see if the deposit is registered. See links below.

    There are two key consequences for a landlord where he fails to register as required:

    1) A
    S21 Notice will be invalid (S21 is required where a LL wishes to evict)

    a) A S21 Notice will be invalid if it is served before the deposit has been registered, even within the first 30 days.

    b) A S21 Notice will be invalid if the deposit was registered late (after 30 days).

    Where the deposit was not registered or was registered late, a landlord can not serve a valid S21 Notice to evict the tenant
    unless the deposit is first returned (or, by agreement with the tenants, offset against agreed deductions).

    Where the tenancy started after 2007, it is not enough for the landlord to register the deposit late and then serve a S21. The deposit must be returned to the tenant (in full, unless the tenant agrees to a lesser amount) before a valid S21 Notice can be served.

    However where the tenancy started before 2007 (ie before compulsory registration was introduced) the LL can either return the deposit, or register it and then serve a S21
    (Deregulation Act 2015). Note that if the fixed term was renewed, or became periodic, after 2007, this does not apply and the deposit must be returned.

    c) A S21 Notice will also be invalid if the PI has not first been served

    Where the deposit was registered in time (within 30 days), but the Prescribed Information was not served, the landlord does not need to return the deposit to the tenant, but must serve the PI before a valid S21 Notice can be served.

    Note that in relation to tenancies starting since 1/10/15, a S21 will also be invalid if
    'The Prescribed Information' defined in Statutory Instrument 2015 No. 1646.has not been provided, though there is no time limit for this.

    Eviction via a S8 Notice, for example for rent arrears, is unaffected by deposit registration & is always possible - see How can a LL or tenant end a tenancy?

    2) Penalty of between 1 & 3 times the deposit

    A tenant can make a claim against the landlord for this penalty via the courts. This claim can be made at any time during the tenancy (once the 30 day time limit has passed of course), or for up to 7 years after the tenancy has ended. This does not apply however, to tenancies that started before 2007 (
    Deregulation Act 2015).

    Late registration of the deposit does not protect the landlord from a claim, but may mitigate it (ie the court may award a penalty of closer to 1 times the deposit).

    In many cases, a tenant only realises the deposit is unregistered, or that a penalty can be claimed, when he comes to reclaim his deposit at the end of the tenancy. So the tenant is often primarily seeking the deposit's return. In that case, the threat of a claim for the penalty may be enough to have the deposit returned, and this may be the easiest solution.

    However the tenant would be within their rights to claim both the deposit AND the penalty.

    The first step is to write (a letter) to the landlord, at the address provided (usually on the tenancy agreement) "for the serving of notices". The letter should be headed "Letter Before Action", and then clearly request the return of the deposit within 5 working days. There is further advice on this, and sample letters, in the Shelter link below. (note: Shelter suggests 14 days, not 5).

    When making a claim for the penalty (and/or the deposit) via the courts, you will need
    Form N208 ( see guidance Form 208A )

    Again, the Shelter link below has further details.

    E)
    How does a tenant claim back the deposit?

    1) Dual Claim
    In the ideal process, the tenant and landlord (or agent) agree whether all of the deposit should be returned, or whether any deductions should be made
    (and how much). This agreement can be reached through discussion, or in writing. Once agreement is reached, each side contacts the relevant deposit scheme requesting the deposit be returned as per the agreement. Provided the scheme receives the same request from each party, the deposit will be released.

    As there are minor variations in how each scheme does this, read the relevant scheme's advice for the precise process.

    2) Failure to agree

    If landlord and tenant cannot agree on deductions the landlord wishes to make from the deposit, they can resolve the disagreement in one of two ways

    a) through the deposit scheme arbitration process. Either side can raise a dispute. See the relevant scheme process for details.

    b) through the courts. Either side can make a claim, and where the claim is for less than 10,000 it will be allocated to the 'Small Claims Track'. This means the case will be heard by a judge in an informal setting, and legal costs cannot be claimed by either side.

    3) Single Claim

    If either the landlord or tenant fails to respond to initial discussions regarding the return of the deposit, a single claim can be initiated. The scheme will then attempt to contact the other party, and if unsuccessful will return the deposit to the claimant. Check the relevant scheme process for full details.

    F) When can a landlord make deductions from the deposit?


    The tenant must return the property to the landlord at the end of the tenancy in the same condition as it was at the start, less fair wear and tear. Consequently if the tenant makes changes eg re-decorating etc., it is advisable to get the LL's written permission, otherwise the LL could insist on returning the property to its original condition, at the tenant's expense.

    The tenant must also pay all rent (and any other fees due) up to the tenancy end date. This includes situations where the tenant gave insuficient notice: the tenancy (and rent due) does not necessarily end when the tenant moves out. Proper notice must be given to end the tenancy.

    1) Determining the condition of the property

    In determing the relative condition at start/end of the tenancy, it is most common to compare the check-in inventory with the check-out report. LLs are advised to get the tenant's signature agreeing to the check-in inventory, and tenants are advised to ensure the inventory is accurate before signing.

    However in the event of disagreement, other evidence can be used. For example a landlord who had just refurbished a property, or installed brand new equipment, could produce dated receipts for the work or purchases.

    Tenants could produce (ideally dated) photos of the property on thir departure, or a witness statement from a 3rd party.

    2) Professional cleaning

    Many tenancy agreements require tenants to have the property 'professionally cleaned' at the end of the tenancy. However

    * if the property was not cleaned to that standard at the start of the tenancy, the LL cannot enforce such a clause, and

    * in any event, what matters is the condition of the property, not how it is achieved. If the tenant (or their 'unprofessional' friends/family) can clean to the required standard, the LL canot enforce 'professional cleaning'.

    3) Betterment

    Landlords cannot claim for costs that would result in '
    betterment'. For example, if an old carpet is damaged, the landlord can make a fair deduction from the deposit, but cannot claim for the full replacement cost as this would result in the tenant providing a brand new carpet to replace an old one (betterment).

    So if the carpet were 5 years old at the end of the tenancy, and the expected life-span of a carpet of that quality was 10 years, the LL could claim only 50% of the replacement cost.

    4) Costs exceeding the deposit value

    It is worth noting that if a tenant owes the LL an amount greater than the deposit, the LL can claim this from the tenant, and if necessary use the courts to sue. The deposit is just one method the LL can claim what is owed.


    G) REFERENCES
    Deposit Schemes:

    Deposits (Government site on deposit protection)

    Shelter (Information on deposits)

    Is it registered? (Shelter: how to check each scheme & see if your deposit is protected)

    Housing Act 2004 (Section 212: tenancy deposit schemes)

    Localism Act 2011 (Section 184: tenancy deposit schemes)

    Deregulation Act 2015 Ss 30-32 (amendments to Housing Act & Localism Act re S21 service, & penalties)

    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes

    Shelter information on 2019 tenant fees.


    National Landlords Association (Explanation of
    Deregulation Act 2015)

    Prescribed Information (RLA explanation of each scheme's PI and what must be provided)

    Claiming Compensation (Shelter: how to claim if your deposit was not protected)

    Money Claim Online (apply online to start legal action against a landlord or tenant who owes money)

    Form N208 (and guidance notes)
    Last edited by G_M; 01-06-2019 at 10:10 PM. Reason: Tenant Fees Act 2019
    • G_M
    • By G_M 19th Feb 15, 5:15 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #4
    • 19th Feb 15, 5:15 PM
    A) What happens when a fixed term AST ends; B) How can LL or tenant end an AST?
    • #4
    • 19th Feb 15, 5:15 PM
    (England/Wales)

    A) What happens at the end of the Fixed Term of an AST?
    1) Tenant wishes to leave; 2) Tenant wishes to stay; 3) Landlord wishes tenant to leave

    1) Tenant wishes to leave

    Tenants can leave when the FT ends without notice, but see 2b if the tenant stays one+ day. But notice helps with returning keys, check-out inspection, return of deposit & references.


    2) Tenant wishes to stay

    a) a new Fixed Term tenancy can be negotiated. Since June 1st 2019, a fee can only be charged if the original contract specified this, and only till June 2020.

    b)
    A Contractual Periodic Tenancy (CPT) may automatically follow the FT if the Tenancy Agreement says so. Also known as 'rolling' or 'monthly'. Read the TA to check. No action is needed other than to remain 1 day beyond the fixed term.

    c) a Statutory Periodic Tenancy (SPT) arises automatically in the absence of a CPT. No agreement is required. No action is required (Housing Act 1988 S5) other than to remain 1 day beyond the fixed term. Nothing need be signed. The terms eg rent remain as before.

    When choosing a new FT or SPT:

    i) A FT gives security: the LL is guaranteed income & the tenant is guaranteed a home.

    ii) A SPT gives flexibility but less security: both tenant & LL can end the tenancy (see below).

    iii) A FT may require a fee: a SPT should not.

    A new FT agreement may be at a new rent.


    3) Landlord wishes tenant to leave

    The landlord/agent must serve either
    * S21(1)(b) (tenancies pre 1/10/15) or

    * Form 6a (tenancies since 1/10/15)

    Both must give 2 calendar months notice, ending on or after the end of the FT.


    A S21 is invalid if:

    a) served before deposit is registered & the deposit's Prescribed Information given to the tenant
    b) incorrect dates/notice period
    c)
    expiry date is within 1st 6 months of original tenancy
    d) For tenancies starting from 1/10/15:
    - served in 1st 4 months
    - new tenancy Prescribed Information was not supplied (EPC, gas report,
    "how to rent), or
    -
    council has served a repairing enforcement notice on the landlord, following a complaint by a tenant. See
    Enforcing repairs.

    See S21 checklist here.

    A S21 is not a notice to quit. The tenant does not have to leave. The LL must apply to court for a possession order.


    B) How can a tenancy be ended?
    1) Mutual Agreement; 2) During a Fixed Term; 3) At the end of a FT; 4) During a SPT; 5) Where LL has one of 17 grounds; 6) In a Contractual Periodic Tenancy; (CPT) 7) Where LL breaches the contract

    1) Mutual Agreement.

    A LL and tenant can agree an Early Surrender at any time, on any terms they wish, ideally in writing with the date of surrender & any conditions or costs

    Outside this, the law specifies:

    2) During a Fixed Term

    Neither landlord nor tenant can end a Fixed Term early unless:

    a) there is a 'Break Clause' (often at/after 6 months). Terms vary so read the contract. The LL & tenant must have the same rights or it is unfair & unenforceable.

    The LL must also serve a S21 Notice.

    b) in one of 17 specific circumstances (grounds) the landlord can serve a Section 8 (schedule 2) Notice eg for rent arrears.

    With both a) or b) above, the landlord must still go to court for a Possession Order.

    3) At the end of a Fixed Term

    A tenant can leave without giving notice; a Landlord must serve a S21 Notice at least 2 calendar months in advance.

    4) After the end of a Fixed Term (
    SPT)

    a)
    Tenant's notice
    Where rent is paid quarterly/monthly/weekly, then Tenancy Periods run quarterly/monthly/weekly starting the day after the FT ended.

    A tenant can end

    * a monthly SPT with 1+ months notice in writing ending on the last day(or 1st - Crate v Miller 1947) of a Tenancy Period sent to the address "for serving notices".

    * a weekly SPT with at least 4+ weeks notice ending on the last day of a Period.

    Example:

    A 6 month FT tenancy starts on 24th June so ends on 23rd December. Rent is monthly. If a SPT follows, the Tenancy Periods run from 24th to 23rd of each month. The tenants Notice must end on the 23rd (or 24th).

    If the tenant serves notice on 22nd March, notice expires on 23rd April (a full month ending on the last day of the Period). But if the notice was two days later (25th March) notice would expire on 23rd May - a month later (since 23rd April is less than a month).

    The day rent is paid is irrelevant.

    In a joint tenancy, any tenant can serve notice. It binds them all. If the tenants don't all vacate, the LL may charge double rent and/or evict.

    b) Landlord's notice
    A landlord must
    give at least 2 calendar months notice (2013 Court of Appeal case Spencer v Taylor), via a S21(1)(b) (tenancies started pre 1/10/15, or form 6a (tenancies post 1/10/15)

    The S21 must be valid - see section A3 above.

    5) Where the landlord has one of 17 reasons eg rent arrears

    During a tenancy, a S8 Notice can be used by a landlord, but must still go to court after 14 days. There are 17 specific grounds for a S8 For ground 8, the tenant must owe two months rent when the S8 is served and when the case comes to court.

    6) In a Contractual Periodic Tenancy

    A CPT can be created either

    i) from the start (no Fixed Term - tenancy is 'rolling' from Day 1) or

    ii) from the end of the Fixed Term, if the contract specifies this

    a) Tenant Notice. The tenant must give notice as stated in the contract. If the contract is silent, or was verbal, it should be a months notice (monthly tenancy) or 4 weeks (weekly tenancy), ending on the last day of a tenancy period.

    b) Landlord Notice.
    In i)
    above, the landlord must give the tenant 2 full Tenancy Periods notice ending on the last day of a Period plus any requirement in the contract by serving a S21(4)(a) for tenancies before 1/10/15 or form 6a for tenancies from 1/10/15.

    In ii) above, the landlord can give the tenant 2 calender months notice (in addition to any requirement in the contract) by serving a S21(1)(b) for tenancies started before 1/10/15, or form 6a for tenancies from 1/10/15.

    The S21 must be valid - see section A3 above.

    7) Where a landlord breaches the contract

    "A repudiatory breach of a contract is a serious fundamental breach which goes to the very core of the contract. It effectively deprives the innocent party of the substantial benefit of the contract and shows evidence on the part of one of the parties that they no longer intend to be bound by an essential term of the contract."

    The breach must be of a sufficiently fundamental character, to amount to repudiation. Repairing issues, for example, would not normally constitute a repudiatory breach unless very severe. See'Hussein & Others v Mehlman'

    Because of the uncertainty of the law in this area, tenants are advised to seek specialised legal advice before relying on this.

    C) General law

    Address for the serving of Notice
    Always serve notice by letter unless the tenancy agreement states otherwise. An informal heads-up of intention is useful, but it is the letter that matters. Notice period starts the date the letter is served, not sent.

    1) the landlord should serve notice at the address of the property.

    2) the tenant should serve notice at the address provided "for the serving of notices". If no address is provided in writing the tenant need not pay rent (
    Landlord and Tenant Act 1987)

    3) The tenancy agreement may state how service should be made eg 1st class post etc.

    Recorded Delivery may not be signed for/accepted, however unless the tenancy agreement says otherwise, notice is deemed to be served even if the letter is returned undelivered discussion here.

    If 1st class post with 'Proof of Posting' is used,
    notice is legally 'served' after 2 postal days. If hand-delivered - get a receipt or have a witness.

    S21 Notices.
    A S21 Notice is not a notice to quit & does not end a tenancy. The LL must apply for a court possession order.

    The Court of Appeal ruled (Laine v Cadwallader) that in a SPT, one month Notice, ending with a tenancy period, was required by a tenant based on common law.

    REFERENCES

    Housing Act 1988
    Section 5 (Statutory Periodic Tenancy)
    Section 21(notice to gain possession)
    Schedule 2 (17 S8 Grounds a LL can use)

    S21 Notice (Form 6a) & PI - tenancies from 1/10/15 (SI 2015 No. 1646).
    Example S21 (4)(a) Notice - Contractual PeriodicTenancies with no fixed term starting pre 1/10/2015
    Example S21 (1)(b) Notice - other tenancies starting pre 1/10/2015
    S21 checklist (Is a S21 valid?)
    Example S8 Notice (possession for rent arrears etc)
    "how to rent" (gov leaflet - tenancies post 1/10/15)
    Spencer V Taylor (2 calender month notice in fixed term and periodic tenancy after a fixed term)
    Deregulation Act 2015 (S33: Retaliatory eviction)
    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes
    Shelter information on 2019 tenant fees.

    Laine and Mitchell v Cadwallader & Cadwallader (2001) (tenant's notice in a SPT)
    Crate -v- Miller [1947] (Notice can end last or 1st day of Tenancy Period)
    Distress For Rent Act 1737 S18 & Landlord and Tenant Act 1730 S1(Double rent if tenant stays after giving notice) explanation
    Hussein & Others v Mehlman [1992] Repudiatory breach of contract
    Landlord & Tenant Act 1927 S23 (Service of Notice)
    Blunden v. Frogmore Investments Ltd [2002] (Service of Notice)
    Last edited by G_M; 09-09-2019 at 12:17 PM. Reason: S21 vaidity checker
    • G_M
    • By G_M 19th Feb 15, 5:16 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #5
    • 19th Feb 15, 5:16 PM
    RENT INCREASES: How/When can rent be increased in an AST?
    • #5
    • 19th Feb 15, 5:16 PM
    A) Mutual agreement; B) During the fixed term; C) at the end of the fixed term; D) During a SPT; E) During a CPT
    (note the following applies in England and Wales)

    A) MUTUAL AGREEMENT
    Rent can be raised or lowered at any time, irrespective of the type of tenancy (Fixed Term or Periodic) provided both landlord and tenant agree.

    Normally such agreement should be in writing, but note that if, for example, the LL proposes a new rent, and the tenant starts to pay it, then by implication the tenant has accepted (agreed to) the new rent.

    B) DURING THE FIXED TERM
    In a Fixed Term tenancy of 12 months or less, it is unusual for there to be any clause allowing the rent to be changed during that FT. However there may be, so read the tenancy agreement.

    In a Fixed Term tenancy of over 12 months (eg 2 years) it is common for there to be a clause allowing the rent to be increased, normally after the initial 12 months. Again, read the tenancy agreement.

    If there is no such clause, then the rent cannot be increased during the fixed term (except as above by mutual agreement).

    Any clause allowing a rent increase must be unambiguous both i) as to when (eg at the end of the first 6 months) and ii) by how much ie :

    a cash amount (eg from 500 pm to 540 pm)
    a percentage (eg 3%)
    an amount linked to a recognised index eg the CPI/RPI (Consumer/Retail Price Index)

    If the wording of the clause is vague, or makes it unclear/ambiguous as to when or how much the increase will be, the clause is invalid. A tenant cannot be presented with a rent increase that was not expected. A vague "The landlord will review the rent after 12 months" is not clear enough to be legally meaningful.

    Note that where a variable amount is specified ie the RPI, the index from 2 months preceding the increase should be specified. This allows the landlord time to calculate the exact amount of the new rent, and send it to the tenant a month before it comes into effect. If the index from the same month as the date of the increase is used, the tenant would have no clear advance notice of the precise amount of the increase, so could not be made to pay it.

    C) AT THE END OF THE FIXED TERM
    Often a landlord (or his agent) will offer a new Fixed Term contract. This can be at a new rent, and can be for any amount they wish. However, the tenant is under no obligation to agree. His options are:
    • agree and sign the new FT contract at the new rent or
    • negotiate and agree a different amount, and sign this amended FT contract or
    • move to a Statutory Periodic Tenancy (see this post here) at the same rent as before
    • Find a cheaper property and move out. No notice is required by the tenant at the end of the FT.
    However, be aware that if a tenant moves to a SPT their security is reduced and the landlord can serve a S21 Notice (1st step to ending the tenancy) eg if he thinks he can get a better paying tenant (and believes the higher rent will offset the costs of eviction, loss of rent during the void period, and new tenant-find).

    D) DURING A STATUTORY PERIODIC TENANCY
    Statutory Periodic Tenancies follow on automatically at the end of a Fixed Term.

    This is always the case unless "the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house". This would normally be by signing a new fixed term contract, or because the original contract made provision for a subsequent Contractual Periodic Tenancy (see below).

    The rent in a SPT, and all other terms, are initially exactly as during the preceding Fixed Term.


    Other than mutual consent (above), the rent can be changed in one of two ways:

    1) If there is a clause in the original tenancy agreement specifying how and when the rent can be increased, the landlord can change the rent in accordance with that clause. As explained above, this must be clear, both as to when and by how much.

    Example: a Fixed Term tenancy of 6 months has a clause stating that at each anniversary of the start of the tenancy, the rent may be increased by 3%. At the end of the initial 6 months, the tenancy becomes a SPT, still at the original rent. 6 months later (ie 12 months from the start of the original tenancy) the rent can be increased by 3%.

    The tenant must be given advance written notice of this, usually of a full Tenancy Period. This is usually a month though precise dates are important - see this post for explanation of !!!8216;Tenancy Period!!!8217;. (annual or weekly tenancies have different notice periods).

    2) whether or not there is a clause (as 1 above), the landlord can serve a Section 13 Notice (see links below). The rent can be increased by any amount, but as above, the S13 increase cannot take effect until (usually) a full Tenancy Period has passed. A S13 Notice must be in the prescribed form. A casual email, or conversation, is not a substitute (unless the tenant agrees - see 'mutual consent' above).

    E) DURING A CONTRACTUAL PERIODIC TENANCY

    1) If there is a clause in the original tenancy agreement specifying how and when the rent can be increased, the landlord can change the rent in accordance with that clause. As explained above, this must be clear, both as to when and by how much.

    2) if there's no rent clause, the landlord can serve a Section 13 Notice (see links below). The rent can be increased by any amount. Note that a S13 Notice cannot be used in a CPT if there is a rent clause in the contract


    A S13 Notice can be challenged by a tenant, and referred to the Rent Assessment Committee, which may confirm the new rent, reduce it, or increase it, in line with local market rents. But note also that as the tenancy is periodic, if the landlord is unhappy with the RAC's ruling (or indeed, unhappy with the tenant choosing to refer the rent to the RAC) he may simply give the tenant (S21) notice to end the tenancy (see below).


    REFERENCES

    Housing Act 1988 section 13

    Section 13 Notice

    Rent Assessment Committee Referral (appeal against a S13 Notice rent increase)

    London District Properties Management Ltd v Goolamy [2009] EWHC 1367 (2009) (S13 Notice can be used even where a SPT contains a rent review clause, but not where a CPT contains a rent review clause)

    Written demands (for rent etc: LL's actual address needed) Beitov Properties Ltd v Martin

    Lettingmate

    Ending/Renewing an AST (what happens when the Fixed Term ends?)(What is a Periodic Tenancy?)(How can a LL remove a tenant?)(How can a tenant end a tenancy?)
    Last edited by G_M; 02-02-2019 at 12:41 PM. Reason: punctuation
    • G_M
    • By G_M 19th Feb 15, 5:16 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #6
    • 19th Feb 15, 5:16 PM
    REPOSSESSION: What happens if a landlord's mortgage lender repossesses the property?
    • #6
    • 19th Feb 15, 5:16 PM
    Occassionally landlords get into financial difficulty & fail to pay their mortgage. Often, even where a tenant has a good relationship with the LL, the first sign of this is a letter addressed to "The Occupier". This may be from a bank, a legal representative, or a court. Or where a landlord is declared bankrupt, the Official Receiver may make contact.

    If a court date is shown, the tenant is strongly advised to take action (see 'What To Do' below) otherwise there is a risk of immediate eviction following the court hearing.

    A What Happens To The Tenancy?

    If the mortgage lender (or Official Receiver if the LL is being declared bankrupt) obtains possession of the property, this will affect the tenant as follows:

    1) The Tenancy is 'Authorised' (the landlord has a Buy-To-Let mortgage or Consent To Let from the mortgage lander, or in the case of bankruptcy if there is no mortgage)

    The bank/Receiver simply becomes the new landlord. The tenancy continues unchanged, and rent should be paid to them.

    However, note that the Landlord & Tenant Act 1985 requires the new LL to inform the tenant in writing of his acquisition within (usually) two months. Failure to do so is a criminal offence. Pending formal notification, it is advisable for rent to be witheld and set aside till it is clear who is entitled to the rent.

    a) If the tenancy is still in the Fixed Term, it remains valid and cannot be ended by either the tenant or the new landlord (bank/Official Receiver) till the end of the fixed term (except by mutual agreement).

    b) If the Fixed Term has ended and the tenancy is Periodic (eg monthly), it remains valid, so either the new landlord (the bank) or tenant can serve notice in the usual way (see "How can a tenancy be ended").


    2) The Tenancy is 'Unauthorised' (The LL has NOT got BTL/CTL)

    The bank can seek immediate vacant possession - ie an order from the court to evict the tenant.

    This directly affects the tenant and is a key reason why action is needed & attendance at court is strongly advised.

    B What To Do?

    A new (2010) Act of Parliament (see link below) gives the tenant the right to request up to 2 months security before the bank takes physical possession. However

    1) On learning of the intended repossession, the tenant should immediately contact the lender (by letter) and ask them to confirm whether the tenancy is 'authorised' (ie BTL/CTL) or not, and also ask them
    a) if authorised, to confirm either i) that the Fixed Term (if relevant) will be honoured, or ii) if the tenancy is Periodic, whether the lender intends to bring it to an end
    b) if unauthorised, to agree to delay repossession for two months to give more time to find somewhere to live. (It may be advisable to ask that the 2 months commence from the date of the court hearing, though the lender may/may not agree to this.)

    2) If the lender does not reply, or refuses to grant the 2 month delay, the tenant should make an application to the court. This should preferably be done in advance on form N244 to be joined to the bank's repossession proceedings. A copy of the tenancy agreement should be attached and/or taken to the hearing.

    3) The Tenant should attend the court hearing, again taking a copy of the tenancy agreement, and make themselves known. If they were unable to apply in advance, they should seek a court official's help, and apply there & then for the extra 2 months.

    If the tenant does not request this, an immediate possession order may be granted, and the tenant evicted.

    References:
    Shelter advice

    Guidance to the 2010 Act

    Mortgage Repossessions (Protection of Tenants etc) Act 2010

    Landlord & Tenant Act 1985 (S.3)

    Form N244 (to apply to court in advance for 2 months delay to eviction)

    ----------------------------------------------------------------------
    These posts may also be of interest to tenants & landlords:

    Ending/Renewing an AST (what happens when the Fixed Term ends?)(What is a Periodic Tenancy?)(How can a LL remove a tenant?)(How can a tenant end a tenancy?)

    Rent Increases (how and when can rent be changed)

    This post may be of interest to landlords:

    New Landlords (information for new or prospective landlords)
    Last edited by G_M; 01-12-2017 at 4:10 PM.
    • G_M
    • By G_M 19th Feb 15, 5:17 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #7
    • 19th Feb 15, 5:17 PM
    NEW LANDLORDS (1): Advice & Information for New Landlords
    • #7
    • 19th Feb 15, 5:17 PM
    Thanks to tbs624

    Before letting a property, get a good book (below), take a course, & read the following (Applies in England/Wales):

    SEE LINKS AT THE END OF THIS POST.

    Research
    Learn the legal obligations, & tenant's rights. See Shelter's website below. Even if using an agent, learn the basics of Landlord & Tenant law, deposit registration, inventory management, repairing obligations, notice & eviction processes. Understand the difference between Fixed Term and Periodic tenancies. Ultimately you are responsible, not the agent.

    Do a detailed budget (spreadsheet). Include all costs. Base income on 10 months a year to allow for voids, & tenants who default: a) initial set-up b) routine annual c) tenant-change-over costs. Budget d) repairs & overheads - predictable and unpredictable (eg new boiler). Add agency fees, landlords insurance, tax etc. Estimate postage, phone, petrol, documentation etc. Have contingency fund for worst-case 'tenants from hell' where you have to pay a mortgage for 8 months without rent, then pay to repair damage. Read a good book.

    Permissions
    You'll need
    * Consent To Let from your Mortgage Lender unless you have a Buy To Let mortgage (CTL/BTL).

    * Consent from your Freeholder if you have a lease (ie a flat and some houses).
    * Specialist landlords insurance. Normal domestic insurance is invalid if you let the property. Compare risks as well as premiums.
    * in Wales, some English councils (& Scotland) you must be registered & maybe licenced (here).

    Safety & the Law
    Since 1/10/15, new tenants must receive the 'Prescribed Information':
    * government leaflet "how to rent"
    * EPC (min E rating)

    * Gas Safety Certificate if there's gas
    * Smoke detectors on each floor
    * CO alarm if there's solid fuel heating.

    * From 1/2/16 landlords must
    check tenants' immigration status.

    * furniture - certified fire-resistant
    * electrics & electrical appliances - safe.

    * Security deposit - registered & 'Prescribed Information' provided within 30 days of receipt. Failure has serious consequences. Never rely 100% on an agent.
    * HMOs - special rules: check local council.

    Documentation
    * A good tenancy agreement. Consider the OFT's unfair contract terms guidelines
    * check-in inventory should be comprehensive. Use inventory clerk? Otherwise, deposit deductions will be hard to justify
    * holding deposit - refundable?
    * application & vetting forms. Authorisation for credit searches
    * standing Order mandate for rent payment
    * letters to utilities for account hand-over

    * security deposit scheme application. It's the law
    * tenant info folder: boiler/appliance instructions, alarm system; how to replace smoke/CO alarm batteries; location of stopcock/fusebox etc; rubbish arrangements, emergency contact no.s for repairs; colour/brand of emulsion to touch up paintwork; current utility suppliers (+ ask the T to let you know if they switch); local doctor etc

    Management
    Be cautious appointing a letting agent. The right agent is as important as the right tenant. Check their credentials & get recommendations/references. Check your contract with them. Can you get rid if they're no good? See link below.

    Take tenant vetting seriously, either DIY or use an agent. Check ID, references, income, credit history, immigration status etc & take nothing for granted (reference the LL before the current one - he may be keen to move them on). Consider a guarantor for high risk tenants, or if you can't vet (overseas applicants, first-time renters etc). Remember a Guarantor Agreement must be Executed as a Deed/witnessed, & guarantor given the tenancy agreement in advance - many agents get this wrong.

    Don't let your agent force you to renew Fixed Term contracts if a Periodic Tenancy will suit. Agents recommend new Fixed Terms as they charge fees from both sides, but a Periodic Tenancy arises automatically. See link below.

    Consider carefully whether & when to increase rent. A long-term tenant is far better than a nominal rent increase. See link below.

    Consider maintenance/repairs: Use your own handyman/contractor when needed, DIY, or leave it to your agent who will have contractors.... at a price.

    Decide how often to inspect (be reasonable) and include in the tenancy agreement.

    Tax
    You're running a business, even if it's a short term arrangement or rental to family, so you have to declare rental income whether tax is payable or not. Research the Income Tax liability and allowances before you start. Note only the interest element of your mortgage repayments is tax-deductable (see below). Consider Capital Gains Tax. If going abroad, & you have no agent, read the Non Resident Landlord Scheme - see below.

    Support and advice
    Join a Landlord's Association and/or a web-based source (see below). Membership fees are tax deductible, & offer discounts on insurance, documents, vetting services, training and more. Some areas have local associations affiliated to one of the nationals. Check your local Council for accreditation scheme for private LLs.

    Rent Guarantee Schemes
    Some Housing Associations, councils, and private letting agencies offer schemes which guarantee your monthly rental income, removing the risk of costly voids between tenants. The advantage of these schemes is obviously the certainty of regular income to pay your mortgage etc. Against this you must weigh 1) the (significantly?) lower rent you will receive; 2) the removal of your freedom to select either the specific tenant or even the type of tenant; 3) the reality that the HA/agent etc will have little concern for the protection/condition of your property; 4) the reality that their priority will be to have a tenant (any tenant) in occupation. Additionally you should ensure that your landlords insurance/mortgage terms do not prohibit the type of tenant the HA/agent plans to install.

    Additionally, be aware your contract will be a commercial tenancy, not an AST (Assured Shorthold Tenancy). This has significant legal ramifications (eg S21, S8, S13 Notices don't apply).

    General Advice
    Remember although it may have been your home, you will be handing over "exclusive occupancy" of the property, and tenants are entitled to view it as their home, without undue interference ("quiet enjoyment"). Make sure you understand the limit of your rights (ie access - a dodgy clause in your tenancy agreement does not grant you free access)

    Be business-like but fair, most tenants respond in kind, looking after your property and keeping those expensive voids at bay.

    And be careful letting to friends or family - will you be willing to evict if you have to? Are you concerned about losing their friendship or love?

    OK - now visit the post below (New landlords (2) )for the promised links to all the research you need to do before taking the plunge!
    Last edited by G_M; 30-05-2019 at 9:09 PM. Reason: split into 2 posts
    • G_M
    • By G_M 19th Feb 15, 5:17 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #8
    • 19th Feb 15, 5:17 PM
    NEW LANDLORDS (2): Links for New Landlords
    • #8
    • 19th Feb 15, 5:17 PM
    Letting agents : This post has moved. Follow the link....

    https://forums.moneysavingexpert.com/showpost.php?p=67759939&postcount=9
    ----------------------------------------------------------
    If you are a new landlord, or taking over management from your letting agent, the links below support the guidance in the previous post (New landlords (1)). This includes links to the relevant leglislation and regulations, as well as to other websites providing guidance and information.

    Books - Try your library. (Check publication date as laws change):
    The Complete Guide to Residential Letting 2015 (also available here)

    Successful Property Letting 2017: (How to Make Money in Buy-to-Let)


    Landlordzone (Landlord information + forum)

    Landlord Law (Property solicitor!!!8217;s website - clinic, blog, resources, advice etc) + Landlaw Law links (more links for landlords)

    Shelter England (Tenants' rights) Shelter Scotland

    Shelter (Repairs in private rented homes)

    Gov advice (Renting out your home: government website)

    HMRC (Property taxes eg Income Tax on rent (and allowable expenses to offset tax); Capital Gains Tax, etc)

    HMRC (Non Resident [= overseas] Landlord Scheme)

    Deposits (Payment, protection and return)

    Deposits (Gov site: rules on deposit protection)

    Prescribed Information (RLA links to various deposit schemes' documentation)

    HSE (Gas Safety Certificate rules)

    EPC (Energy Performance Certificate rules)

    How to rent (mandatory government leaflet)

    ESC (Electrical Safety Council - Rules)

    The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (from 1/10/15)

    Right to Rent (Mandatory checks on tenants' immigration status)

    RLA (Residential Landlord!!!8217;s Association - mixed reviews)

    NLA (National Landlord!!!8217;s Association)

    Letting Agents (Tips for selecting, and tips for sacking them)

    Letting agents (Landlordzone guide)

    ARLA (Letting agents' professional body)

    The AIIC (Association of Independant Inventory Clerks)

    ParagonAdvance (Tenant referencing provider !!!8211; there are others. Use Google) Letsure

    Landlord & Tenant Act 1985 (Repairing obligations; LL's address; and much more)

    Landlord and Tenant Act 1987 (Address for Notices; etc)

    Protection from Eviction Act 1977 (speaks for itself really. Also makes harrasment a criminal offence)

    Housing Act 1988 (Definitions and rights of various tenancy catagories - note AST is most common; creates Statutory Periodic Tenancies)

    Housing Act 2004 (Deposits; Houses of Multiple Occupation; etc)

    Localism Act 2011 (section 184 - updates to deposit scheme rules)

    Deregulation Act 2015 (amendments to deposit penalties & S21 service, smoke alarms, retaliatory eviction rules)

    Statutory Instrument 2015 No. 1646 (Prescribed Information at start of tenancies from 1/10/15 - Deregulation Act)

    Requirements for new tenancies since Oct 2015 (Stat Inst 1646 & Dereg Act)

    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes

    Shelter information on 2019 restrictions on tenant fees.


    Written demands (for rent etc: LL's actual address needed) Beitov Properties Ltd v Martin

    Rent Increases (how and when can rent be changed)

    HMOs (Licencing of Houses in Multiple Occupation in England: A guide for landlords and managers)

    OFT356 (Unfair Terms in Tenancy Agreements)

    Housing (Wales) Act 2014 (landlord registration & licencing)

    This advice is not exhaustive. Whole books are devoted to the subject.
    Last edited by G_M; 12-06-2019 at 2:40 PM. Reason: overflow from New Landlords 1
    • G_M
    • By G_M 19th Feb 15, 5:18 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    • #9
    • 19th Feb 15, 5:18 PM
    LETTING AGENTS: tips for selecting/tips for sacking
    • #9
    • 19th Feb 15, 5:18 PM
    We see countless threads here from landlords who have had problems with their agents. This post aims to provide advice to landlords/potential landlords.

    (Note that whilst many suggestions are general common-sense and apply anywhere, specific advice is based on the law as it applies in England and Wales.)

    A) SELECTING A LETTING AGENT

    Never assume the agent knows what they are doing, or will protect your interests. There are good agents, but equally there are some appalling ones. This can apply equally to the national chains and small independents.

    Anyone can set up in business as an agent - no training is needed, there are no qualification requirements, and many have very little experience before they start. Add to that the fact that their prime motive is profit, and it can often be the case that their own interests come way ahead of the landlord's, and way way ahead of the tenant's.

    Question them extensively before signing up. Make sure you are happy with their professionalism. Price should be only a minor factor in the decision-making process. A bad agent will cause as many problems, if not more, than a bad tenant.

    1 Professional Bodies

    Since 1st October 2014, the Enterprise and Regulatory Reform Act 2013 S83 requires letting agents in England to sign up to one of 2 schemes:

    * The Property Ombudsman
    * Property Redress Scheme

    Additionally, check for membership of:

    Association of Residential Letting Agents
    National Approved Letting Scheme
    Association Professional Inventory Providers
    -Safe Agent - Fully Endorsed

    These are voluntary but are an indication of professionalism, and provide some limited additional protection.

    Or less relevantly (though again an indication of professionalism):


    The NAEA
    The RICS
    The UKALA (more of a resource for letting agents than an upholder of standards)
    The NFOPP

    Note that both ARLA and the NAEA have Client Money Protection schemes in case a member agent goes bankrupt. eg

    The ARLA have the ability to make discretionary grants (up to pre-set limits) if you suffer financial loss due to the bankruptcy or dishonesty of the member and/or their firm...
    If in doubt you can check an agent is a genuine member on the relevant website.


    2 Code of Practice/Complaints Procedure

    Do they have a Code of Practice? Have you been given a copy and read it? Do they have a clear Complaints Procedure? Is there an external element eg referral to Head Office if a chain, or to a Professional Body (above)?

    3 What will they do

    Check what they do, and what are the limits of what they do? Generally all will offer landlords 3 broad choices:

    tenant-find only; and/or
    rent collection; and/or
    full tenancy management

    But this is just the starting point: different agents might mean different things by these. eg will they register the deposit as part of 'tenant-find'? Maybe, but maybe not. If they do, do you want them to? It might be better to do this yourself since you will be managing the check-out.

    What does 'full management' mean? Do they charge extra or is it included, to:

    * arrange annual gas report
    * risk assessment (including legionella)
    * arrange repairs
    * do inspections
    etc

    Prepare a spreadsheet of tasks related to your letting, covering everything from obtaining the EPC, Gas cert, to marketing, reference/credit checks, inventory, tenancy agreement, through inspections, repairs etc etc

    If your list does not have at least 50 items, it is not complete.

    Then have a column where you tick those items you want the agent to do, and those you want to do yourself (+ a column to tick off as you complete them.)

    Only then can you go to the agent and say

    1) "I want you to do all these things?"
    2) "How much will you charge for that?"
    3) and make sure each item is then included in the contract you sign - so there can be no misunderstanding

    Some items will need even more detail:

    eg repairs. You may want the agent to deal with tenant-reported repairs, and arrange contractors. But are you giving them carte blanche to pay whatever they want to get the repairs done? Using your money? Or do you want
    * to see, and authorise, all quotes before work is authorised?
    * or to allow them to go ahead up to, say, 100 without consulting you? Or 500 or whatever?
    * or do you want to make clear you will arrange all repairs yourself?

    You must consider these things, and decide, and then get them written into the contract with the agent. Do NOT just accept the agent saying vaguely "we'll look after repairs" unless you want to give them complete freedom to spend your money, because they'll just do the repairs and deduct the cost from your rent.

    Make sure you understand what extra charges there are (for you or your tenant).

    And when you will receive the rent: within x days of rent date? x days of receipt? Or unspecified (ie never......).

    Importantly, check how you get rid of the agent if you are dissatisfied. What does the contract say? Are you tied in? For how long? What if you sack them but keep the tenant they found? Many contracts have onerous conditions where you try to take over management yourself, or switch to another agent. Make sure you understand these conditions, and are happy with them before you sign up. If you are unhappy with the terms, either get them changed/re-written, or go elsewhere.

    4 How will they treat your tenants

    The way tenants are treated by the agent can directly affect the way the property is treated, the length of time the tenants stay (and thus number of voids) and the likelihood of complaints.

    * Be aware that agents, landlords and related 3rd parties (eg credit vetting companies, inventory clerks) can no longer charge tenant applicant fees (from June 1st 2019). There are also limits on the size of holding deposits (which must be refundable in most circumstances) and security deposits. See Gov Guidance notes in link below.
    * how will they deal with the tenants at the end of the fixed term? What options will they give the tenant? Do they charge the tenant? And/or you?
    * how often will they do inspections? How much notice will they give the tenants, and how do they give it? Will they send you a report? Will they negotiate the dates/times with the tenant? What if the tenant says they want to be there but not at that time?

    Finally, a good test is to ask a friend to go in posing as a prospective tenant and see how they are treated, and what fees they are asked to pay.

    5) The Contract

    It may sound obvious to some, but make sure you read and understand it in full before signing up. Do not be afraid to ask for it to be amended ie to delete clauses you do not like, or add in clauses you want eg specifying exactly what they will do for you (see 3 above).

    You are employing them, so it is important the contract reflects what you want them to do. Contracts are often seen by lay people as somehow untouchable, but there is no reason they cannot be altered.

    6) References

    Ask for the names of some of the landlords on their books. Then contact them and ask if they are happy with the agent. The agent may well be reluctant to give you names ('data protection' etc!), but a good agent, with happy landlords, should be able to find at least one or two who would agree to have their contact details passed to you......

    Do the same with tenants. If you can establish that tenants in properties they are managing are happy, that says a lot about the agent.

    B} SACKING A LETTING AGENT

    Sometimes landlords decide they no longer wish to use their letting agent. This may be to save the fee, or because they are unhappy with the service, or for other reasons. How, when and at what cost they can do so depends primarily on the contract they signed with the agent, so before doing anything, read the agent contract (not the tenancy agreement).

    Usually notice is required (2 months? 4?). Often there is a clause requiring on-going fees if a tenant the agent introduced remains in the property. There may be other conditions.

    The 2009 case The Office of Fair Trading Vs Foxtons Ltd in the High Court (which sets a precedent that must be followed by County Courts) ruled that a clause hidden in small print requiring on-going fees was unfair and unenforceable.

    However, in any dispute over fees, remember the old adage "possession is 9/10ths of the law". You do not want to be in a position where you are trying to claim back from them rent they hold. Far better if they have none of your money, and they have to claim their fees from you.

    So:
    1) decide if you're going to employ a new agent, or self-manage
    2) select a new agent if appropriate
    3) talk to your tenant so they understand what's going on. Ideally face-to-face. Reassure them this will not affect them negatively. Reassure them their deposit is still safe. Explain future rent payment process.
    4) Instruct new agent if appropriate, and agree a start date
    5) WRITE to your tenants, formally confirming your chat. Instruct them (yes, INSTRUCT - you are their landlord)
    a) who/how to pay future rent;
    b) starting when;
    c) who/how to contact with issues (repairs etc);
    d) give them a new address "for the serving of notices"
    (LL & Tenant Act 1987)
    6) Wait till the next rent payment date has passed and you've received the tenant's 1st rent payment direct (or via new agent)
    7) Only then, give the old agent the required notice, in WRITING. By this point, hopefully, they have none of the tenant's rent and thus owe you nothing.
    8) Your letter should also instruct them to pass you

    * the(original) tenancy agreement(s), references, correspondence, inventory, gas certificates, inspection reports, Right To Rent & other documentation
    * a final account, and balance of any funds they hold (hopefully 0)
    * details of the tenant's deposit (this needs to be transferred into your/new agents name with the scheme holding it)
    * dates the EPC, gov leaflet, Gas report etc were provided to tenants

    8) check their final account. You'll need to pay their fee for the duration of the notice period whatever it is, but that can be balanced against any rent/other funds they hold of yours

    If you live abroad:
    If you are abroad and the tenant pays rent direct to you (as opposed to paying an agent who is in UK), then the tenants may have to deduct your tax before paying the rent. HMRC can chase the tenants for this. See HMRC (Non Resident Landlord Scheme).

    You will also need arrangements in place to deal with repairs, gas inspections etc. if you are abroad. You can't expect the tenants to email you, and hope you respond, and by law the tenants must have an address in England or Wales "for the serving of notices" on you.

    C) TENANTS

    There is advice for tenants looking for a reputable letting agent here:

    BBC: (how to protect yourself from 'cowboys')

    Shelter: (complaints about letting agents)

    See also 'How To Rent' (gov advice).

    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes

    Shelter information on 2019 tenant fees.


    D) REFERENCES & OTHER LANDLORD LINKS

    The Office of Fair Trading Vs Foxtons Ltd (Unfair contract terms in agency agreements)

    Landlordzone: (terminating a LA contract)

    Landlord and Tenant Act 1987 S48: (address for serving of notices)

    Tenant Fees Act 2019 Abolition of most tenant fees from June 1st 2019 Gov Guidance Notes

    New Landlords: (information for new or prospective landlords)


    Ending/Renewing an AST: (what happens when the Fixed Term ends?)(What is a Periodic Tenancy?)(How can a LL remove a tenant?)(How can a tenant end a tenancy?)


    Rent Increases: (how and when can rent be changed)


    Repossession: (What happens if a landlord's mortgage lender repossesses the property?)
    Last edited by G_M; 05-08-2019 at 10:40 PM. Reason: oved to make space above + tenant fees Act 2019
    • G_M
    • By G_M 28th Jun 18, 9:32 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    LODGERS (Licencees/Excluded Occupiers)
    A lodger (broadly) lives in the same property with a resident landlord & shares facilities. Unlike tenants, lodgers have few rights.

    The Housing Act 1988 provides definitions of 'Resident Landlord' & 'same property' (S31 & Schedule 1 (10).

    Key advice is to ensure clear 'house rules' or guidelines are agreed from the start to avoid problems. This could be within the contract, in a separate document, or even verbally (though this can lead to future misunderstandings!). Include matters like:

    * what parts of the property are open to the lodger eg entire house or bedroom, bathroom, kitchen only?
    * cleaning. What is the lodger expected to do?
    * guests. Are they permitted? Is there a deadline? Over-night? If over-night, how often (eg 5 nights a week leads landlord to feel he has 2 lodgers, not 1!)
    * consumables. eg shared use of kitchen basics (salt, pepper etc), bathroom & cleaning products? Included in rent or shared purchasing?
    * smoking
    * noise ( eg music after X O'clock)
    * any other restrictions

    Make clear in the contract what notice period is required. Recommended is a short notice period eg 1 week either way. Sharing a home with someone where it has not worked out can be onerous or even unpleasant.

    Some landlords don't bother with a written contract, especially when the lodger is a friend or colleague, but this is short-sighted. As long as things go well this is fine, but if ever there are issues, be that over rent or lifestyle, then a clear mutually agreed contract can make resolution far easier.


    See also:

    LodgerLandlord (21 tips from solicitor Tessa Shepperson + General information site)

    Landlordzone (Q & A on taking in lodgers)


    Renting out rooms in your home (Government info)

    Rent a Room Scheme (HMRC guide for tax-free income from lodgers)
    Last edited by G_M; 07-10-2019 at 3:46 PM. Reason: Post moved to make room above
    • G_M
    • By G_M 28th Jun 18, 9:37 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    This Post is reserved for a future topic.
    • G_M
    • By G_M 28th Jun 18, 9:43 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    Post reserved.
    • G_M
    • By G_M 28th Jun 18, 9:45 PM
    • 49,656 Posts
    • 61,660 Thanks
    G_M
    Kindly do not add posts to this thread.

    If you wish to comment publicly on the posts above, please do so by starting a new thread,using the "New thread" button.

    If you wish to make corrections or propose additional wording, highlight updates or changes in the law, ideas for a future topic etc. please PM me. I welcome all suggestions.

    If you have a query or problem with your own tenancy (either as a tenant or landlord), and would like help, please do not post it here. Create your own new thread using the "New thread" button.
    Last edited by G_M; 25-10-2018 at 11:42 AM.
    • Ymenotnow
    • By Ymenotnow 20th Dec 18, 12:09 AM
    • 1 Posts
    • 0 Thanks
    Ymenotnow
    Tenancy rental charges exhorbitant
    I am wanting to rent a flat in February 2019 and have starting viewing now. I have found one and to secure it the charges are astronomical as well as charges payable on move in day:
    Non refundable tenancy set up fee 300
    Non refundable guarantor fee 150
    Payable on move in day:
    1st months rent 650.00
    Deposit 900.00
    Check out fee payable in advance 60.00
    Are these charges within the law? I feel like it's a mega rip off. Any help would be appreciated
    • agrinnall
    • By agrinnall 20th Dec 18, 7:36 AM
    • 22,820 Posts
    • 18,841 Thanks
    agrinnall
    Stuff
    Originally posted by Ymenotnow

    Please read the very clear instruction in the post above yours then delete your post and start a new thread, after which I will delete this post to keep the thread clear for G_M.
    • PatriciaBrown
    • By PatriciaBrown 9th Feb 19, 6:54 AM
    • 1 Posts
    • 0 Thanks
    PatriciaBrown
    Is it like you are selling your flat?
    Actually, this is the month of February.
    • bradleyk
    • By bradleyk 20th Feb 19, 3:14 PM
    • 2 Posts
    • 0 Thanks
    bradleyk
    what do you mean?
    • anthonyconstantinou
    • By anthonyconstantinou 28th Mar 19, 10:43 AM
    • 2 Posts
    • 1 Thanks
    anthonyconstantinou
    Anthony Constantinou CEO CWM FX likes this guide. Thanks for sharing the information.
    • Twinkleyes14
    • By Twinkleyes14 11th Apr 19, 8:21 AM
    • 1 Posts
    • 0 Thanks
    Twinkleyes14
    Don't know if this apies to.rhis thread but I was wondering what happens if your landlord isn't registered when they are legally required to. I.e I've lived here 5 years and now selling and wants me out. I know I need a section 21 but I want to know where I stand with paying rent as she isn't registered so can she still serve a section8 for non payment. Baring in mind she isn't declaring said rent income either or done any boiler checks for 4 years even after telling her that the boiler wasnt working properly
    • agrinnall
    • By agrinnall 11th Apr 19, 9:24 AM
    • 22,820 Posts
    • 18,841 Thanks
    agrinnall
    Don't know if this apies to.rhis thread but I was wondering what happens if your landlord isn't registered when they are legally required to. I.e I've lived here 5 years and now selling and wants me out. I know I need a section 21 but I want to know where I stand with paying rent as she isn't registered so can she still serve a section8 for non payment. Baring in mind she isn't declaring said rent income either or done any boiler checks for 4 years even after telling her that the boiler wasnt working properly
    Originally posted by Twinkleyes14

    Please start a new thread of your own where your questions can be addressed, this thread is for information only.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

2,587Posts Today

5,584Users online

Martin's Twitter