Increasing regulation of the private rented sector means that landlords of residential property in England need to be aware of their extensive obligations towards tenants.
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.
Break clause: removing 'too much' not fatal to vacant possession...Read more
Covid-19: what enforcement options does a landlord have?Read more
Energy partnerships are the key to sustainability | Social housing...Read more
Evolving Cities - is retail and leisure regeneration the key to...Read more
Commercial rent moratorium extended: initial reactionRead more
Affordable Homes Programme: 2021- 2026 details and model leases...Read more
Partnership opportunities | Social housing series part 2Read more
The end of the commercial rent moratorium: avoiding the chaosRead more
Registered providers: what you need to know about First HomesRead more
The pandemic has forced the majority of the workforce into a world of remote working. As a result, our cities are evolving.Read more
Issues that will impact the sector over the coming months - from future proofing social housing developments to managing offices post pandemic, green finance, and creating connected communities.Read more
Watch our video series for information on the legal issues that are affecting the real estate sector. Each...Read more
Helping you navigate your business through the risks and opportunities that Brexit will bring.Read more
The way people shop is constantly evolving, from the growth of online and the changing use of stores...Read more
The widespread disruption and closure of businesses caused by the Covid-19 pandemic and the subsequent national and local lockdowns has brought into sharp focus the question of available insurance cover for losses under...Read more
The pandemic has had a deep and long-lasting effect on the leisure, food & drink sector, forcing operators to embrace new ways of attracting and servicing customers.Read more
There's a growing demand for retailers to do more to attract the Purple Pound – the collective spending power of disabled shoppers, estimated to be worth around £274bn. We look at the opportunities, the legal issues and...Read more
Green finance is gaining speed, driven by global climate change pressures and the recognition of the vital role which sustainability plays in a resilient financial services sector.Read more
Providing a comprehensive service from development and investment through to asset management and tax.Read more
We have one of the largest and most experienced commercial landlord and tenant teams in the UK.We act for institutional and private investors, property companies and all manner of occupiers.Read more