Landlord and Tenant Update
Obtaining possession of a property after 1 October 2018, the Transitional Provisions of the Deregulation Act 2015 and the new role of Local Authorities
Following the introduction of the Deregulation Act 2015, all Assured Shorthold Tenancy Agreements entered into on or after 1 October 2015 were caught by further requirements. From this date, there was also a transitional period of three years in which Assured Shorthold Tenancy Agreements entered into before 1 October 2015 would be exempt from the requirements of the Act. However, from 1 October this year, the provisions of the Act now have retrospective effect to ALL Assured Shorthold Tenancy Agreements irrespective of when they were entered into. Therefore, all Assured Shorthold Tenancy Agreements have to be treated as falling within the scope of the Act, and landlords must be aware of their responsibilities and the consequences of failing to adhere to the new law under the Act.
In view of the changes to the law, a landlord must take certain steps before they are able to serve a valid Section 21 Notice on their tenant, requiring them to vacate the property.
Let’s now discuss the changes.
A landlord must provide their tenant with an Energy Performance Certificate
A landlord must now provide this to their tenant without further delay and, in any event, before serving a Section 21 Notice. If this is not provided to the tenant, then the Section 21 Notice will be invalid and a Judge will dismiss your claim for possession.
A landlord must provide their tenant with a Gas Safety Certificate before the start of the Tenancy Agreement
This is a problematic provision of the Act because it places a requirement on a landlord to provide the tenant with the certificate before the Tenancy Agreement starts. Therefore, the approach that landlords should take is to give the certificate to the tenant before they move in and before they sign the Tenancy Agreement. The landlord should also obtain a signed certificate from the tenant stating that they have received the Gas Safety Certificate.
The difficulty that landlords will face is that a Tenancy Agreement may have started before 1 October 2015 and then become a statutory periodic tenancy. In this situation, the landlord will not have provided the tenant with the certificate at the start of the tenancy. In this situation, there are two possible remedies:
- Enter into a new Tenancy Agreement with the tenant and provide them with the Gas Safety Certificate, Energy Performance Certificate and “How to Rent” Booklet, as well as complying with the law concerning the protection of tenancy deposits. This will ensure that a fresh Tenancy Agreement is created and there are no doubts about the landlord’s compliance. The drawback with this is that it will delay you obtaining possession because you have created a new Tenancy Agreement.
- Provide the tenant with the Gas Safety Certificate part way through the Tenancy Agreement and then serve your Section 21 Notice. This is a more risky approach to take because the certificate has not been provided to the tenant before the Tenancy Agreement started. However, it is hoped that Judges will take a pragmatic approach and see that it is not practical to proceed with option 1 in circumstances when a landlord wishes to re-take possession of their property.
Provision of the Government’s “How to Rent” booklet
Under the transitional provisions, it is not a requirement for a landlord to provide the “How to Rent” booklet to a tenant retrospectively. However, I feel that it would be good practice for a landlord to provide it to the tenant now, in any event. Obviously, for all Tenancy Agreements entered into on or after 1 October 2018, the landlord will need to provide this to the tenant as they are new Tenancy Agreements.
The Local Authority’s New Approach to Possession Claims
Prior to April this year, many Local Authorities throughout the country would take the approach of advising tenants to remain in properties until they were physically evicted by Court bailiffs. This would present a number of difficulties to landlords because they were left in a position where tenants remained in their properties and the only option was to proceed with a possession claim and see the matter through to conclusion via the Courts.
However, on 3 April 2018 the Secretary of State for Housing, Communities and Local Government issued guidance to Local Authorities, which has now changed their role. The guidance now requires Local Authorities to be more proactive in dealing with tenants facing a possession claim and potential homelessness, and give more advice and assistance to the tenant from the outset. It also requires Local Authorities to make contact with the landlord and discuss the possibility of allowing the tenant to stay at the property.
The guidance states that:
a) where the Local Authority considers the tenant has received a valid Section 21 Notice; and
b) the Local Authority is satisfied that the landlord intends to take possession and further efforts by the Local Authority to resolve the situation and persuade the landlord to allow the tenant to remain in the property are unlikely to succeed; and
c) there would not be a defence to the possession claim
then it is unlikely to be reasonable for the tenant to continue to occupy the property beyond the expiry of the Section 21 Notice, unless the Local Authority is taking steps to persuade the landlord to allow the tenant to live at the property for a longer period of time. As such, the Local Authority must take steps to try to locate alternative accommodation for a tenant. Furthermore, the Local Authority are not allowed to consider it reasonable to expect a tenant to remain in a property until Court bailiffs physically evict the tenant.
In theory, this means that Local Authorities should provide tenants with alternative accommodation and landlords would not need to commence Court proceedings for possession. Although in practice, the situation may be different because if a Local Authority has a shortage of housing then they are going to be unlikely to re-house the tenants straightaway and Court proceedings would be inevitable.
It is hoped that landlords will be aware of these changes to the law and will comply with their new obligations. However I would recommend that landlords take legal advice before deciding to serve Section 21 Notices.
For further information and advice on any of these matters, please telephone me on 01245 504 904 or contact me by email at firstname.lastname@example.org .