Renting out your property – what you need to do

11 September 2019

Peter Bourke and Alexandra Sollohub take a brief look at the current provisions that have to be complied with by landlords.

As the law stands at present a person wishing to let residential property and to be able to secure vacant possession at the end of the fixed term must comply with a series of obligations. In some cases failure to comply can result in the permanent prohibition of using the section 21 (No fault) notice to recover possession.  In other cases the defect can be remedied.

Aside the express points set out below there are a number of other legislative provisions that you have to comply with and a good starting point is to make sure your property is a safe environment to live in.  As accidents do happen you should consider whether you should take out appropriate insurance cover.

Below we consider the issues on granting a new tenancy to a new tenant and not a further grant of a tenancy to an existing tenant.  There are important differences and consequences.  If you require further assistance please contact one of the team listed below.

Tenant Fees Act

Only limited fees can be charged to a tenant.  If you are in breach of this Act you cannot serve a section 21 notice.   It can be remedied by returning the money to the tenant. We have commented on this Act previously here

Gas Safety Certificate

This certificate is issued by the gas engineer to confirm that the gas appliances are in satisfactory working order. If you fail to serve it correctly you will be prohibited from ever relying on a section 21 notice to recover possession (although this ruling is set to be challenged in the Court of Appeal at the end of January 2020). 

Whilst not a statutory requirement to serve notice of an electrical safety check it is recommended that an electrical inspection is carried out to confirm whether the electric systems and appliances are in good working order.

How to Rent Booklet

The latest version must be served before the start of the tenancy.  If it is not served no valid section 21 notice can be served.  Where the fixed term expires and the tenant remains in occupation consensually there is no need to serve another booklet but if you enter into another written tenancy agreement you do, unless the version that you have already given has not been updated.

Energy Performance Certificate

As of April 2018 it is a legal requirement that a property has a minimum energy rating of ‘E’ in order to be let.  A certificate must be given to the tenant before the tenancy is entered into and failure to do so means no valid section 21 notice can be served.

Tenancy Deposit

If you are taking a deposit it must not exceed 5 weeks rent.  It must be properly protected and prescribed information served on the tenant within the relevant period. 

Failure to deal with the deposit correctly means that no valid section 21 can be served.  Depending on the rules of the deposit scheme that you choose, you may be able to serve the prescribed information out of time, but if you have not protected the deposit in time, you will need to return the deposit before you can serve a valid section 21 notice. 

If you fail to deal with the deposit correctly the tenant can make a claim for statutory damages.

The section 21 notice

This cannot be served within 4 months from the start of the tenancy; it must give at least 2 months' notice and must not have been served more than 6 months ago.  A breach in each case makes the section 21 notice invalid.

You have to use the prescribed form.


Other issues

Improvement Notices or Emergency Remedial Notices

If either of these has been served on the property within the previous 6 months no valid section 21 notice can be served.

Tenant complains about the state of the property

If the landlord fails to respond within 14 days and then fails to fix the problem and then serves a section 21 notice, this notice will be invalid if an Improvement or Emergency Remedial Notice is subsequently served before an order for possession is made. Additional no further section 21 notice can be served for 6 months.

Finally

Make sure your tenancy agreement includes the right clauses and that it is properly signed and dated and do not lose either the signed and dated tenancy agreement or any of the other documents referred to above.




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