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In particular, a failure by a landlord to comply with certain ‘pre-letting requirements’ could have serious implications, including not being able to serve notice to obtain possession of the property.
The pre-letting requirements were introduced to provide greater protection to those who rent their primary residence, and to crack down on rogue landlords who unfairly exploit the market.
The pre-letting requirements are contained in a complex myriad of legislation. Broadly, there are four key obligations on landlords.
If a deposit is taken, it must be registered with one of the government approved deposit protection schemes and the initial requirements of the chosen scheme must be complied with within 30 days of receiving the deposit.
Additionally, prescribed information in relation to the deposit must be given to the tenant. This includes generic information about the scheme and specific information about the deposit and the tenancy.
Although there are various other obligations on landlords in relation to EPCs (e.g. to make the EPC available to anyone who views the property), the only one specified as a pre-letting requirement (and which can invalidate a later section 21 notice to obtain possession of the premises) is the obligation to ensure the EPC is given to the person who ultimately becomes the tenant.
If the property has gas appliances, the landlord must provide the tenant with a copy of the latest gas safety certificate issued in respect of each appliance (which must be no more than 12 months old) before the tenant occupies the property. For a new tenancy, the certificate must be provided prior to the tenant occupying the property. The landlord must also provide a copy of each annual gas safety certificate to the tenant within 28 days of the check.
The landlord must ensure that a copy of the latest version of the government’s guide “How to rent: the checklist for renting in England” (How to Rent Guide) is provided to the tenant. The How to Rent Guide sets out the various rights and obligations of each party and makes it clear to the tenant what the landlord's responsibilities are. There is no express reference to the timescale within which the How to Rent Guide must be provided.
Put simply, if landlords do not comply with the pre-letting rules, it is much more difficult for them to deal with their properties.
The answer depends on the specific breach that has taken place and, in some cases, is laced with uncertainty.
There are also further implications for a landlord. Depending on the nature of the breach of the regulations there are both civil and criminal penalties that can apply, and compensation may be awarded to a tenant in certain circumstances if their landlord is found by the courts to be at fault.
Additional obligations also apply in respect of fire and electrical safety, right to rent checks, fitness for human habitation and the fees that can be charged in connection with a tenancy.
Given the uncertainty surrounding the ability for landlords to remedy a breach of the pre-letting requirements, it is absolutely vital that a landlord gets it right at the outset of the tenancy, in order to avoid the potentially serious consequences of non-compliance. Compliance should also be evidenced clearly, so that future buyers or lenders can be satisfied. How can this be achieved?
The rules around obtaining possession of residential property have been heavily affected by emergency COVID-19 legislation.
From 1 June 2021 until 30 September 2021, a section 21 notice must give tenants at least four months' notice of the fact that the landlord requires possession. Also, a section 21 notice cannot be served which specifies a termination date that is less than 6 months from the commencement of the tenancy and, unless there is a break clause, the notice cannot expire before the end of any fixed period of the tenancy has come to an end.
The default position, if there is no further legislation, is that the notice period for a section 21 notice will revert to two months on 1 October 2021, but it is impossible to rule out further changes or an extension of the current arrangements.
There remains a significant backlog of possession claims in the courts following a stay on possession proceedings, which was lifted on 21 September 2020, and the government has asked bailiff associations not to enforce possession orders where anyone in the household has COVID-19 symptoms or is self-isolating.
TLT has extensive experience in dealing with landlord and tenant matters in respect of both commercial and residential properties. If you would like to discuss, please get in touch.
Contributor: Matt Battensby
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
21 July 2021