There have been two recent instances when it would appear that Government has made changes to forms and publications in contravention of legislation. Worrying?

We are all aware that tenants must be given the ‘How to Rent Guide’ before they enter into a tenancy. The important point here is that tenants must be provided with the latest version of the guide.

I call on Government to get their own house in order before bringing in new regulations for landlords and agents!

Most people would search online or have the latest version printed in their office. The Government website was showing the last update as 31st May 2019 and so, for many, this would be the version used.

Confusing changes … risky misunderstanding

Two changes, however, were made to the Guide without the Government website announcing them. The first was made on 3rd June 2019 where the reference to NALS was changed to Safeagent. The second was made on 29th July 2019 relating to ‘help’ from Shelter now being ‘advice’ from Shelter.

One might argue that these changes are minimal and rather unimportant but that is not the point. The statutory requirement is for the tenant to be provided with the most current version of the guide at that time. If given an older version then the statutory requirement will not have been met.

The second change relates to Section 21 and the Form 6A notice. In some ways this is the opposite of the above problem. Here the Government did publish an amended Form 6A on their website. Therefore anyone looking to download this form would use that form in the belief that it is the correct one.

The change was made to the Notes for Form 6A, point (e) essentially adding words relating to licensing of HMOs. The point here is that changes can’t simply be made to the Section 21 notice. Form 6A is prescribed by statute with the wording being set out in regulations. If changes are to be made then there has to be a statutory instrument to bring the changes into effect. There is no such instrument!

The situation therefore is that the Form 6A on the gov.uk site currently is actually not valid as the prescribed form and so should not be used. Agents and landlords should take legal advice on this matter.

Devil in the detail

In previous articles I have reported on the importance of the minutiae and how landlords and agents can get caught out. The main example of this was Caridon Property Ltd v Monty Shooltz where the gas safety record was not given to the tenant prior to taking up the tenancy. The Section 21 notice seeking vacant possession was therefore deemed invalid and the tenant was allowed to remain in the property potentially ad infinitum!!

Could such a situation arise with one of the above? Sadly I believe that it could. No doubt it would be argued that the Guide or Notice would be ‘substantially the same’ but that is not really good enough.

Landlords and agents are being bombarded with new legislation and regulations. Trying to keep up and comply is already difficult enough and mistakes will, no doubt, be made. It is extremely concerning though to think that Government departments and employees are also making mistakes, some of which could lead to major, expensive problems for landlords and agents.

Information! Now!

I have long asked for more advertising or public information to be made available for those working in the private rented sector. Many agents are members of professional bodies such as ARLA; information will be given to them through that body but there are still many private landlords who want to let and manage their own properties without having to be a member of a specialist body. In the above cases individual research would have found the wrong How to Rent Guide and an updated but non statutory Section 21 notice. Scary really.

It is possible that by the time this article is printed there will have been enough publicity on these subjects for them to be rectified but it should not be for us to advise and inform Government about their mistakes!

I would make a call to Government to get their own house in order before bringing in any new rules and regulations for landlords and agents.

Frances Burkinshaw is an experienced independent trainer available nationally for in-house or group training. 01892 783961 or 07887 714341 or [email protected]