Things you need to know
There’s more to being a landlord than handing over the keys and collecting the rent. A detailed set of legal obligations applies to every rental property. At best, it takes time, effort and attention to detail; at worst there could be serious consequences for failing to meet standards.
It goes wrong all the time
At Propeller we’re frequently asked to recover situations where private landlords have got the process slightly wrong, or in some cases completely wrong. Around 80% of new landlords who come to us do so because they need help rescuing a bad situation that could have been prevented with the right know-how.
The following is a rough guide to landlords’ responsibilities. Failure to comply can result in civil or even criminal penalties.
Harder to evict bad tenants
Failure to follow the regulations has significant legal implications on ending a tenancy. The most typical ways for a landlord to end a tenancy are through the issuance of ‘Section 21’ and ‘Section 8’ notices. If certain things are not done correctly, it can make an attempt to serve a section notice be declared invalid. That will mean more cost, easily the equivalent of six months rent, but often a lot more.
Assured Shorthold Tenancy
An AST can be written or verbal – you’d be surprised how many recovery situations we see with verbal “paperwork”. Not having a written AST will add major complexity, expense and time to recovering any situation.
Working on the basis that anything is better than nothing, it’s always better to issue a written AST, and obviously have it signed by all parties. It’s better still to use an AST that has been tested in court, such as ours.
If you don’t have a valid AST, you can’t serve valid Section 21 and Section 8 notices. There are no legal penalties for this, as a verbal contract is still legitimate, but it’s an own goal waiting to happen.
Private landlords are legally responsible for all gas pipework, flues and appliances meeting the required standards under The Gas Safety (Installation and Use) Regulations 1998. Annual inspections must be carried out by a Gas Safe registered technician, and a record kept for two years from the date of the test.
Tenants should be issued with a safety certificate as soon as they move in, or less than 28 days after the renewal inspection if they’re already living at the property.
This is one of the most serious regulations and one that is easy to get wrong, so we insist on arranging inspections and certification for properties we manage.
If you manage yourself and you cannot gain access to or are refused access to a property for the annual inspection, seek professional advice immediately as failure to comply is a serious criminal offence. It can also result in a Section 21 or Section 8 notice being declared invalid.
You cannot force access to the property without a court order.
Landlords are required to make sure all plugs, sockets, wiring, electrical supply and appliances are safe and meet statutory standards. This is detailed in the Electrical Equipment (Safety) Regulations, 1994.
There’s currently no legal obligation for landlords to carry out annual safety checks, but under the broader Consumer Protection Act 1987 you do have to be able to demonstrate the property is safe. It’s a grey area.
We’re waiting on changes to regulations after the Grenfell Disaster, but it seems obvious that mandatory testing is going to come into force and its likely to follow the gas safety style requirements.
We recommend formal electrical testing at least once every five years, subject to any changes in legislation, and can arrange this if you require.
Soft furnishings must meet the standards set out in The Furniture and Furnishings (Fire) (Safety) (Amendment) Regulations 1988/1989, 1993 and 2010. This includes beds, headboards, mattresses, pillows, chairs, sofas, sofa beds, cushions, futons as well as conservatory and garden furnishings. The only way to be certain of compliance is to check the manufacturers’ tags.
Many landlords prefer to let unfurnished properties due to the difficulties and risk of meeting these regulations and failure to comply is a criminal offence.
Under The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 it is a requirement to have a smoke alarm on every level of a rental property. There is also a requirement for a carbon monoxide detector if there is a solid fuel burning appliance (log burner or open fireplace as an example). Failure to comply with this is punishable by fine. Note that this legislation is being reviewed as part of the enquiry into the Grenfell Disaster and may well be subject to change in the near future.
Energy Performance Certificate
All tenants in England and Wales must be provided with an Energy Performance Certificate for their rented property. The certificate shows how energy efficient a home is, rated from A for very good, to G for very bad.
The better the rating, the less energy needed to live there. Most UK homes are rated D or E.
The certificate, which is valid for ten years, also gives information on how to improve a property’s efficiency, and so cut tenants’ energy bills.
From the 1st April 2018, it is an offence to let a property with an EPC rating of F or G as a new tenancy, and it will be an offence from 1st April 2020 to let a property with an EPC rating of F or G regardless of when the tenancy started.
If a property is let that doesn’t have a valid EPC, this can be used to declare a Section 21 and Section 8 notice invalid. It’s rare but complicated. If this happens seek professional advice.
It is advised in most tenancies to take a deposit as protection against non-payment of rent and damage to the property. However, the deposit must be held in an approved government scheme.
The process to protect the deposit is more complicated than it might seem, with details varying according to the scheme, but it’s strongly advised to have the terms and the prescribed information signed by the tenant at the start of the tenancy and in the required time frames.
If you don’t protect the deposit the law prescribes compensation to the tenant of three times the deposit (plus the deposit back) and that is almost certain to be automatic. It makes no difference what they owe you or cost of any damage that has been caused.
Even if the deposit money is in the scheme as the law requires but you didn’t follow the detailed process exactly you can still be liable for compensation. That is probably the second most frequent mistake that private landlords make and without a valid Deposit Certificate Section 21 and Section 8 notices are very likely to be invalid.
How to rent
The government requires landlords to issue the latest “How to rent; the checklist for renting in England” at the start of the tenancy. If you don’t, it can be used to declare a Section 21 or Section 8 notice invalid. It’s rare that this is used to invalidate a Section notice but is probably the most frequent mistake that private landlords make. It’s recoverable, but as with all things, it costs time and money.
Revenge Evictions and Maintenance
After 1st October 2015, the Retaliatory Eviction and the Deregulation Act 2015 makes it an offence to evict someone because they have complained about the maintenance / conditions in the property. In practicality, it’s far more complicated.
If the complaint is about electrics, gas or other serious safety issues, get it fixed as soon as practicable or you will be in breach of much more serious legislation. The majority of complaints involve damp and mould, although they can be pretty much any other maintenance issue.
If the tenant complains in writing, including email, then care is needed with the response. If the tenant also complains in writing to the local council – which they don’t need to inform you about – then you potentially have a problem. If the council issues an improvement notice you cannot evict for six months (under a Section 21 notice) and until after you have completed the repair works. However, if the tenant caused the maintenance problem in the first place, then you can evict. It’s complicated and there are many more layers of buts, ifs and whens; the best answer is do the required maintenance to keep your asset in good condition and document all the steps you’ve taken.
Having problems? Let us help
At Propeller we see and resolve complex situations for private landlords very frequently. If you find yourself in this situation do give us a call.
“Saved me loads of time and money looking after my flats and keeping tenants happy.”