The new rules supposedly bring about a new game for new tenants. Will tenants now have more security and will the new regulations make a difference?
The topic is of course very interesting. The fact that new regulations had to be introduced says something about private sector landlords. The regulations are put in place to ensure that tenants will have more security and will be more protected when entering a new tenancy… right?
As of 1 October 2015 several new regulations came into effect thus imposing additional requirements on landlords of residential properties. The regulations basically deal with several matters hence issues with smoke alarms, providing future tenants with a checklist of what is required before moving into their rented accommodation and the all-important section 21 notice.
We will be looking at two of the new regulations; the tenant checklist and the s21 notice.
The new regulation should now assist new tenants when entering into a new tenancy. Private rented sector landlords MUST provide new tenants (entering into a new Assured Shorthold Tenancy on or after 1 October 2015) with the following documents:
- an energy performance certificate (EPC), to be given to the tenant free of charge;
- a copy of the gas safety certificate for the property; and
- a copy of the latest version of the “How to Rent Guide: the checklist for renting in England”as published by the Department for Communities and Local Government; and
- deposit paperwork.
A checklist for tenants can be found here
Failure to provide these documents will prevent any landlord from terminating an Assured Shorthold Tenancy under the “no fault” procedure.
Some requirements are quite clear cut however, some requirements may be confusing to certain tenants specifically tenants who signed agreements on or before 1st October 2015. We should clarify that specific changes only apply to new Assured Shorthold Tenancies that started on or after 1st October 2015. This means that tenants who began their tenancy before 1st October 2015 will not have the benefit of the new regulations. This would be quite frustrating for these tenants especially those who began their tenancies just before the new regulations kicked in.
However, does it make much of a difference to new tenants? Looking through the new booklet, How to Rent Guide: the checklist for renting in England”, you will note that the booklet does not contain much advice on the Deposit Scheme hence the time frames to protect the same. Tenants should be aware that regulations in regard to deposits have not changed. Your landlord is still under the same duty in this regard. Thus your landlord must protect your deposit in a government-backed scheme within 30 days of receiving your deposit. Your landlord must also serve you with the prescribed information within this time frame.
Another issue that may arise is that it may be very difficult for a landlord to obtain an EPC and gas certificate before the tenancy begins. Realistically it is unlikely that the landlord will be able to provide this information before the tenant moves in. Does that then mean that a landlord will not be able to terminate the agreement at all? Or is it merely a case of serving the tenant late and then terminating the agreement if and when they like? If that is the case, the regulations do not really make much of a difference. However, saying that, a tenant might refuse entry to carry out the energy performance or gas safety inspection. That would mean that it would make it impossible for a landlord to serve a section 21 notice. The landlords would then need to lawfully gain access to carry out the requirements. This could be used as a delay tactic by tenants.
So what is the solution? It may be the case that landlords end up delaying the commencement of the tenancy to avoid liability meaning that new tenants will not be able to move in when required.
There are several issues that need to be taken into account. Will landlords, realistically, be able to follow the new regulations?
The additional amendments to the s21 notice is set in place so that private sector tenants are protected from being evicted unreasonably. However, could the new rules also have distinct problems?
The new regulations introduce a new prescribed form for the s21 notice. A landlord must serve this on a tenant when requiring possession of the property. Regardless the new form, form 6A, cannot be served until the tenant has been in the property for at least four months.
The advantage of this is that the ‘typical’ landlord/estate agent cannot serve the s21 notice when you sign your tenancy agreement. Also, if the s21 notice cannot be served for four months and the landlord/estate agent must provide 2 months’ notice then a landlord cannot attempt to serve the s21 notice within a 6 month fixed term.
Nevertheless, new s.21A notice cannot be given unless:
- The tenant has been provided with the Energy Performance Certificate for the property (probably before the commencement of the tenancy in order to be compliant)
- The tenant has been provided with a current gas safety certificate (regulations exclude the ‘within 28 days of inspection’ requirement, but not the requirement to produce the latest report before occupation commences)
- Tenant has been given (by landlord or agent) prescribed information and deposit certificate (information of this is contained in the CLG booklet “How to rent: the checklist for renting in England”).
A further requirement is that a landlord cannot serve notice on a tenant if they have complained about disrepair. Research carried out by Shelter and British Gas in 2014 suggested more than 200,000 private renters had been evicted in the previous year for asking their landlord to fix a problem.
Therefore, if the Local Authority give notice (valid notice) the landlord cannot serve a s21 notice on the tenant within 6 months of this notice; otherwise known as ‘preventing retaliatory eviction’.
Unfortunately, it is not that simple. The tenant must write to the landlord and await a written response from the landlord within 14 days beginning on the day the complaint was given. If the landlord does not respond, or the response was inadequate or if the landlord served you with a s21 notice, then the tenant should notify the local authority of the same. The local authority must then provide a valid notice, in relation to the disrepair in the dwelling house.
What is a valid notice? The council’s EHO team must inspect and then provide an improvement/ remedial action notice or a notice considered valid under the new regulations to render the s21 notice invalid. A hazard warning, an early notification letter or an expert report (under the provisions of the pre-action protocol) will not be enough. This notice must also be served on the landlord, by the council, efficiently.
In reality, the tenant is relying on the council to act efficiently. Time is literally of the essence. From what I noted, the council’s EHO team has to react quickly and serve the relevant notice within the s21 notice period and/or possession proceedings period and before the possession order is granted. If it is served in time, then the notice will be rendered invalid. However, if the council do not act in time and an order is granted by the court, the possession order cannot be overturned even if the council finally grant a notice thereafter. I think the next question would be this – how much faith do we have in the council to act promptly? It may be the case that you will have to ask the court to stay proceedings (if any) until such notices are provided. We have noted however, that the National Landlords Association (NLA) is calling on local councils to provide a clear framework for how they plan to deal with complaints in order to ensure that legitimate ones are taken seriously and that spurious ones don’t unnecessarily prolong the possession process.
It is safe to say that there is much debate surrounding the new regulations. Mainly will it work and how will this effect new tenant as well as old tenants? Will the new regulations have much effect? We introduced penalties for private landlord’s failing to protect deposits however, has this changed much over the last few years? It is very likely however, that we will have a surge of invalid s21 notice/possession cases arising at the start of next year so I suppose only time will tell.
By Sadhari Perera and Kristian Campbell-Drummond, Social Housing team.