Questions and Answers for Landlords regarding an Assured Shorthold Tenancy (‘AST’)
Patricia Wollington – Senior Associate Solicitor
Please note that the information herein is of a general nature and you should not act or refrain from acting on it without professional advice on the specific facts of your case. No liability is accepted by the author or Sykes Anderson Perry Limited in respect of this article. This is a complex subject and the above is a basic outline only and is intended only as a general guide. Nothing herein constitutes financial advice.
Prior to renting out a property under an AST, a prospective landlord should ensure that he has not only complied with the law by supplying the correct information to the tenant and registering the deposit with one of the applicable schemes, he must also satisfy himself that he is able to produce sufficient evidence of compliance to enable him to commence legal proceedings to recover possession of his property, should the need ever arise. In order to assist Landlords, we have set out below some common questions and answers.
Q. What are the key documents that I need to give my new tenant?
A. Before you hand over the keys to your new tenant, make sure that you have supplied the following information to your tenant:
- Copy of the Gas Safety Certificate for the property
- Copy Energy Performance Certificate
- Copy of the latest edition of the ‘How to Rent: The checklist for renting in England’
- Confirmation that any deposit paid has been protected in one of the applicable Tenancy Deposit Schemes..
- Confirmation that you have provided the tenant with the prescribed information for the deposit scheme.
- Where applicable, carbon monoxide alarms have been fitted in every room and have been checked and are in proper working order.
- Smoke alarms have been fitted on every floor and have been checked and are in proper working order.
Q. What background checks, if any, should I undertake on the proposed tenants?
A. In addition to undertaking normal identity checks and seeking references, from 1 February 2016 landlords should also check the right to rent status of any occupiers moving into the property.
Q. How can a Landlord prove compliance?
A. The best way to prove compliance is to prepare a checklist and inventory which you or your agent can produce to the tenant prior to handing over the keys. Ask the tenant to initial each item provided and listed in the checklist and then get the tenant to sign and date the checklist and you can countersign the document and retain this as proof of compliance.
Q. What happens if I don’t supply the tenant with the above documents or if I can’t prove that I gave the necessary information to the tenant?
A. Failure to prove compliance could result in the S21 Notice seeking Possession becoming invalid and the need for a fresh S21 Notice to be served after the correct documents have been given to the tenant. In the case of Caridon Property Limited v Monty Shooltz, a possession order was refused on the grounds that the S21 Notice was invalid due to the landlord’s failure to serve a gas safety certificate on the tenants before they moved in. The decision was appealed and the decision upheld. Therefore it is crucial that in order to protect a landlord’s potential claim under S21, the landlord must evidence his compliance.
Q. How long does a S21 Notice last?
A. A S21 Notice is only valid for 6 months so if you have to give two months notice to your tenant to end the tenancy, you must ensure that you start proceedings within the remaining 4 months for it to be effective. If at the time of commencing proceedings, six months has expired from the date of the Notice, you will need to issue a fresh S21 Notice.
Q. I have heard that new rules apply from 1 October 2018 – what are these?
A. When the Deregulation Act 2015 was introduced it made some changes to the Housing Act 1988 in regards to assured shorthold tenancies and in particular, it set out new procedures for service of S21 Notices and the recovery of possession. The aim was to provide a transition period for tenancies created prior to 1 October 2015 up until 1 October 2018. The requirements only applied to all new tenancies taking effect from 1 October 2015 onwards but from 1 October 2018 the requirements apply to all ASTs granted for properties in England retrospectively. This means that in order for a landlord to gain possession under S21 he will need to prove that he gave the tenant both an energy performance certificate (EPC) free of charge and a gas safety certificate as well as a copy of the most current version of the ‘How to rent: The checklist for renting in England. The landlord does not need to supply updated versions of the booklet each time it is updated just the current version applicable at the time of the tenancy. For ASTs entered prior to 1 October 2015, the booklet did not exist and therefore the landlord does not have to prove compliance prior to this date.
Q. What do I need to do if the fixed term AST has ended and the tenancy continues under a statutory periodic tenancy – do I have to serve fresh information on the tenant?
A. No, the periodic tenancy will be considered a replacement tenancy as opposed to a new tenancy and there is no need to serve fresh information. The obligation only arises when a new tenancy is formed.
Q. Do I need to use any specific forms from 1 October 2018?
A. Yes, from 1 October 2018 the only valid form will be the prescribed form of notice Form 6A which contains provisions requiring compliance with the above obligations. Other non-prescribed forms are invalid.
Q. Is a court likely to grant a possession order where the landlord has not complied with the statutory requirements for an AST granted before 1 October 2015?
A. It is impossible to predict what a court might order in a situation where an AST was entered prior to 1 October 2015 and where the landlord has not taken steps to regularise the tenancy during the transition period nor complied with the statutory requirements. It seems somewhat unlikely that a landlord should ever be prevented from obtaining possession of its property but equally the court may not have any sympathy for the non-compliant landlord. It is possible that court might accept service of the statutory information by the landlord after 1 October 2018 but before service of the S21 Notice on the tenant. Time will tell and as is usual, the outcomes will often centre around the particular facts of each case.
Q. What is retaliatory eviction and how does it affect landlords?
A. This situation might occur when a landlord has received a written and genuine complaint from its tenant about the condition of the rental property and the landlord fails to properly respond to the complaint and then proceeds to serve a S21 notice on the tenant. This is often referred to as ‘revenge eviction’. In circumstances where the tenant can show that the landlord did not respond in writing to address the complaint before serving the notice or where the council had issued the landlord with an improvement or emergency work notice, the S21 notice will be invalid and the landlord cannot commence possession proceedings until he is able to serve a valid S21 notice.
Q. I move between the UK and US on business. What address do I put on the documents?
A. If you need to commence possession proceedings through the court, you will need to provide a UK address and therefore it is advisable to provide your UK address as this will need to be provided in the relevant S21 notice.