There appears to be a common theme… pressure groups make a lot of noise about a particular issue; Government has a consultation period saying that it listens; professionals and stakeholders in the industry get very hot under the collar; in time legislation is introduced and then … it all goes quiet.
Government has said, on numerous occasions, that it will ensure that there is good exposure for new legislation so that all parties are made aware. Not so in my opinion.
Landlords must give tenants the Gas Safety Record; the EPC, and the ‘How to Rent’ guide; and they must have smoke detectors in place and check them on the day the tenant moves in etc. etc…
I remember when the Housing Act 2004 introduced Deposit legislation (actually in 2007). We were promised national advertising using a large budget to ensure that all landlords, tenants and agents were aware of the new rules. I would suggest that even today, some 12 years later, many landlords and tenants are not aware of the legislation and so could be caught out. This would be through ignorance, not evasion.
I know that ignorance is no excuse for breaking the law but I would argue that in our industry there is so much legislation that one could be forgiven for not realising that yet another act has been put on the statute book.
Advertising: blink and you miss it!
In my view there should be clear advertising when there are changes, advising landlords and tenants to seek advice so that they fully understand any implications that the new legislation might have for them. With everything now on the internet they could be guided towards a government site giving clear, concise information and advice. I believe that these sites exist but the advertising doesn’t – or there isn’t enough of it.
The Tenant Fees Act came in on the 1st June – there was one very short piece on the national news stating that landlords and agents would no longer be permitted to charge fees to tenants and then the news moved on to other subjects. In other words ‘blink and you miss it’.
Even for those well-informed landlords the pitfalls are many. Under various pieces of legislation over the years landlords have understood that they must ensure that they arrange to have a Gas Safety Record and give a copy to the tenant before they move in; also they must give the tenant a copy of the EPC; they must give the tenant a copy of the ‘How to Rent’ guide; they must ensure that they have smoke detectors in place and check them on the day the tenant moves in etc. etc.
Most landlords comply with these rules and know the importance of compliance. Some will not be aware of the correct timescales and perhaps will not be timely in giving the tenant the Gas Safety Record for example. There have now been a couple of cases heard in the County Court where ASTs have effectively been turned into ‘fully’ Assured tenancies due to the fact that the Gas Safety Record was not given prior to the tenant moving in. (Caridon Property Ltd v Monty Shooltz for example).
The Deregulation Act 2015 stipulates that in order for Section 21 notices to be valid all of the above must have taken place prior to the tenant taking a tenancy. In other words this Act pulls together all the individual pieces of legislation. If, therefore, it can be shown that one of these items did not happen, the landlord will be unable to serve a Section 21 notice and will have to rely on a Section 8 notice, citing a Ground to gain possession. Most of the Grounds such as breach of contract are discretionary meaning that possession will be at the whim of the judge. Non-payment of rent is a mandatory ground as it repossession of an owner’s home.
It is now essential for landlords and agents to have a comprehensive and clear checklist which MUST be given to the tenant prior to entering into the tenancy. The tenant must be asked to agree the checklist, sign and date it. This will then be the proof that will be required by the court in the event of a possession hearing.
It has never been more important to ‘dot the I’s and cross the T’s.
Frances Burkinshaw is an experienced independent trainer available nationally for in-house or group training. 01892 783961 or 07887 714341 or firstname.lastname@example.org