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This manual is a guide for landlords and agents with some experience.
Although it will also be useful for the inexperienced, every reader should
be aware that the laws and procedures applicable to housing are complex
and this guide is not a substitute for taking professional advice from a
suitably experienced person before making important decisions.
This manual is designed to assist all landlords, but particularly the typical
smaller landlord. More than three quarters (78%) of all landlords own
a single dwelling for rent, with only 8% of landlords being full time
landlords. (Footnote: according to The Private Landlord Survey 2010
(published in October 2011 by the Department for Communities & Local
Government)
This document may be reproduced for training purposes in whole or in
part. However, the source of the material should be acknowledged in the
document or webpage and ANUK and LGA logo should be displayed on the
front and/or back page.
This second revision is based on the earlier Landlord Development Manual
undertaken jointly by IDeA, LACORS and ANUK and the new Landlord
Handbook, undertaken by ANUK, Unipol Student Homes and the Local
Government Association (LGA) .
The revision itself has involved work by:
Hilary Crook of Hatch Legal, solicitors , David d’Orton Gibson, Training
for Professionals, Victoria Loverseed, Unipol, Neil Marsden, Jim
McLaughlin, Settled Housing Solutions, Bob Mayho, Chartered Institute of
Environmental Health, Dave Princep, ANUK/RLA, Anne Rowland, Landlord
Accreditation Wales, Martin Rushall, editorial consultant, and Tom
Toumazou,.
This second revision was co-ordinated and edited by Martin Blakey -
ANUK/Unipol.
ANUK
ISBN 978-0-9573053-0-4
© Unipol 2012
About this handbook
Use of this handbook
Acknowledgements
Published by
The Landlord Handbook - revised 2012
Liability and disclaimer
Whilst prepared carefully and in good faith, neither the authors, ANUK, nor Unipol Student Homes accepts any liability (in negligence or otherwise) for decisions taken in
reliance on the information given in this guide. In any given situation, what lies in a landlord’s best interests may vary, and it would not be possible for those involved in
producing this work to cover every combination of circumstances in a manual such as this.
The Manual contains guidance and notes on certain aspects of law as they might aect the average person. They are intended as general information only and do not
constitute legal or other professional advice. It should not be relied on as the basis for any decision or legal action. The law is constantly changing so expert advice should
always be sought.
To the extent permitted by applicable laws, no liability is accepted for any direct, indirect, incidental, special or consequential loss or damage to any user (whether arising
in contract, tort including negligence or otherwise) arising out of or in connection with the use of the landlord manual except for personal injury or death of any person
caused by negligence or for fraud.
ANUK is administered by Leeds Student Homes, a wholly owned subsidiary company of the national student housing charity Unipol Student Homes. Leeds Student Homes
has a registered oce at 155-157 Woodhouse Lane, Leeds LS2 3ED, registered company number 4006445, VAT registration no. 680552325. Unipol Student Homes is
a company limited by guarantee, registered Oce: 155/157 Woodhouse Lane, Leeds LS2 3ED. Registered in England and Wales No. 3401440. Registered Charity No.
1063492. VAT Registration No. 698 8456 49.
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Table of Contents
Table of Conents
1. Pre-tenancy 8
1.1 Investing in a Property 8
1.1.1 Private Rented Sector Markets and the Relevant Standards 9
1.2 Accreditation Schemes 10
1.2.1 How Schemes operate 11
1.2.2 Membership Benets 11
1.2.3 ANUK/Unipol Codes of Standards or Larger Student Developments 12
1.2.4 UUK Code of Practice 12
1.3 Letting Options - Means of Managing Property 12
1.3.1 Self-managing Landlords 12
1.3.2 Use of Letting and Managing Agents 12
1.3.3 The Relationship between the Landlord and Agent 13
1.3.4 Guaranteed Rent ‘Agents’ 14
1.3.5 The Liability of the Landlord where an Agent is used 14
1.3.6 The Liability of the Agent in Agency Agreements 14
1.3.7 Dening Responsibilities in the Contract 15
1.4 Permissions to let Property 16
1.5 Energy Performance Certicates 17
1.6 Green Deal 18
1.7 Insurance 19
1.8 Tax 20
1.8.1 Income Tax 20
1.8.2 Structure 21
1.8.3 Capital Gains Tax 21
1.8.4 Inheritance Tax 22
1.8.5 Stamp Duty 22
1.8.6 Value Added Tax 22
1.9 Council Tax 23
1.10 Sources of Advice 23
1.11 Membership of a Landlord Association 24
1.12 Useful Contacts for Landlords 24
2. The Responsibilities and Liabilities of the Landlord/Letting Agent 25
2.1 Landlords’ Responsibilities for Repair and Maintenance 25
2.2 Implied Terms in Tenancy Agreements 25
2.3 Common Law Implied Terms 25
2.3.1 The Right of a Tenant to Quiet Enjoyment of a Rented Property without Intrusion or
Disturbance by a Landlord 25
2.3.2 Tenant must use the Property in a Tenant-like Manner 26
2.3.3 The Tenant shall not permit Waste 26
2.3.4 Fair Wear and Tear 26
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2.3.5 The Tenant must not use the Rent to pay for Repairs, except in very Limited
Circumstances 26
2.4 Statutory Implied Terms 26
2.4.1 Landlord and Tenant Act 1985 26
2.4.2 Access to Property 26
2.4.3 Breach of Repair Obligations 27
2.4.4 Defective Premises Act 1972 28
2.4.5 Occupiers’ Duty of Care 28
2.5 Housing Health and Safety Rating System 28
2.5.1 Hazards 29
2.5.2 Risk Assessment 29
2.5.3 Vulnerable Groups 30
2.5.4 Property Inspection Form 31
2.5.5 HHSRS Enforcement 31
2.6 Decent Homes Standard (applicable to England only) 32
2.7 Gas Safety 32
2.7.1 Gas Safety (Installation and Use) Regulations 1998 32
2.7.2 Exceptions to the Regulations 33
2.7.3 Room-sealed Appliances 34
2.7.4 Indications that an Appliance is Faulty or Dangerous 34
2.7.5 Tenants’ Duties 34
2.8 Electrical Safety and Electrical Goods 34
2.8.1 Landlords’ Duties and Responsibilities 34
2.8.2 Building Regulations Part P 35
2.8.3 Further Guidance 36
2.9 Safety of Furniture 36
2.9.1 The Furniture and Furnishings (Fire) (Safety) Regulations 1988 36
2.10 Houses in Multiple Occupation (HMO) 37
2.10.1 Denition of an HMO 37
2.11 Duties on the Manager of an HMO 38
2.11.1 Duties of Occupiers of HMOs 39
2.11.2 Duty to carry out a Fire Risk Assessment 40
2.11.3 LGA (formerly LACORS) National Fire Safety Guidance 40
2.12 Licensing of Private Rented Properties 40
2.12.1 Purpose of Licensing 41
2.12.2 Mandatory Licensing of HMOs 41
2.12.3 Additional Licensing of HMOs 41
2.12.4 Selective Licensing of Other Residential Accommodation 41
2.12.5 Applying for a Licence 42
2.12.6 Fit and Proper Person Test 42
2.12.7 Licence Conditions 42
2.12.8 Renewing a Licence 43
2.12.9 Properties where a Licence may be refused 43
2.12.10 Temporary Exemption from Licensing 43
2.12.11 Right of Appeal Against a Local Authority’s Decision 44
2.12.12 Oences 44
2.12.13 Rent Repayment Orders 44
2.13.1 Obtaining Planning Approval 45
2.13.2 Certicate of Lawful Use 45
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2.14 Building Regulations Approval 45
2.14.1 Obtaining Building Regulations Approval 45
3. Setting up a Tenancy 47
3.1 Types of Tenancies 47
3.1.1 Assured and Assured Shorthold Tenancies 47
3.1.2 The Main Dierences between an Assured and an Assured Shorthold Tenancy 47
3.1.3 Choosing an Assured or an Assured Shorthold Tenancy 47
3.1.4 Setting up an Assured Tenancy 48
3.1.5 Tenancies which cannot be Assured or Assured Shorthold Tenancies 48
3.1.6 Tenancies which can be Assured, but not Assured Shorthold, Tenancies 48
3.1.7 Fixed-term Tenancies 49
3.1.8 Periodic Tenancies 49
3.1.9 Initial Period of an Assured Shorthold Tenancy 49
3.1.10 Regulated Tenancies 50
3.1.11 Licences 50
3.1.12 Sub-letting/Assigning Tenancies 50
3.1.13 Joint and Several Tenancies 51
3.1.14 Succession Rights and Rights of Survivorship 52
3.2 Tenancy Agreements 52
3.2.1 Written Tenancy Agreements 52
3.2.2 Benets of Written Tenancy Agreements 52
3.2.3 Tenant’s Right to a Written Statement 53
3.2.4 Implications of Oral Agreements 53
3.2.5 Preparing a Written Agreement 53
3.2.6 Unfair Terms in Tenancy Agreements 54
3.2.7 Making an Inventory/Schedule of Condition 55
3.3 Deposits and Tenancy Deposit Schemes 56
3.3.1 Requiring a Deposit 56
3.3.2 Withholding Part of the Deposit 57
3.3.3 Protecting a Deposit 57
3.3.4 Authorised Tenancy Deposit Protection Scheme Providers 59
3.3.5 Relevant Person 59
3.3.6 Lead Tenant 60
3.4 Bond Guarantee Schemes 60
3.5 Rent Setting 60
3.5.1 Setting the Rent 61
3.5.2 Rent Book 61
3.6 Raising the Rent 61
3.6.1 Rent Act (Regulated) Tenancies 62
3.7 Housing Benet 63
3.7.1 Tenants have to provide Information and Proof of: 63
3.7.2 Conditions for Rent Allowance and Local Housing Allowance 63
3.7.3 Setting the Rent 64
3.7.4 April 2011 Changes 64
3.7.5 Extension of the ‘Shared Accommodation’ LHA rate 66
3.7.6 Non-dependants 66
3.7.7 Revised Guidance on Direct Payment of LHA to Landlords 66
3.7.8 Rent Allowance 67
3.9 Tenant References 67
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3.10 Unlawful Discrimination 67
4. During the Tenancy 69
4.1 Periodic and Other Visits 69
4.2 Tenant Obligations 70
4.3 Entry and Refusal 70
4.4 Emergencies 70
4.5 Changing the Terms of an Assured or an Assured Shorthold
Tenancy and Tenancy Renewal 70
4.6 When and if the Tenant can leave during the Tenancy 71
4.7 Preventing, Controlling and Recovering Rent Arrears 71
4.8 Nuisance and Anti-social Behaviour 72
5. Ending a Tenancy 74
5.1 Practical Tips For a Pain-free End of Tenancy Handover 74
5.2 What to do if the Tenancy is to continue 75
5.2.1 Agreeing a Replacement Fixed-term AST 75
5.2.2 Agreeing a Contractual Periodic AST 76
5.2.3 Statutory Periodic Tenancy 76
5.3 What to do if the Tenant wants to leave 76
5.3.1 Tenant Termination of a Periodic Tenancy 76
5.3.2 Tenant Termination of a Fixed-term Tenancy when it expires 76
5.3.3 Tenant Termination of a Fixed-term Tenancy before it expires 76
5.4 What Landlords can do if they want a Tenant to leave 77
5.4.1 At the End of a Fixed-term Assured Shorthold Tenancy 78
5.4.2 At the End of a Fixed-term Assured Tenancy 80
5.4.3 To end a Periodic Tenancy 80
5.4.4 To end a Fixed-term Tenancy before it is due to expire 80
5.5 Powers and Duties of District Judges 84
5.6 Absolute Orders or Suspended (Postponed) Orders 84
5.7 Applying to Court for Possession – Standard Procedure 84
5.8 Applying to Court for Possession – Accelerated Procedure 85
5.9 After the Court Order – and Eviction 85
5.10 Applying to the Court for Rent Arrears Only 86
5.11 Rent Act Tenancies 86
5.12 Contractual or Common Law Tenancies 87
5.13 Unlawful Eviction 88
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5.14 Unlawful Harassment 88
6. Smoking and the Health Act 2006 90
Appendix 1 - Practical checklist for landlords: obligations and considerations 91
Appendix 2 - Property Inspection Form 93
Summary of Property Inspection –
Summary of checks of most common hazards 100
Appendix 3 - Rent assessment committees 102
Appendix 4 - Where to get help 103
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Investing in a private rented property can be achieved in a variety of ways.
Sometimes landlords inherit a property that they then turn over to renting.
Sometimes owners of properties become unintentional landlords because
they are unable or unwilling to sell a property at the value the market
currently dictates.
This guide is not a nancial guide to housing investment but there are a
few key points worth highlighting.
It is important that an investor (and all landlords must see themselves as
investors), before investing in a property, undertakes a proper business
plan that takes into account:
• the value of the property and the loan to asset ratio of any
loan nance obtained
• the cost of any loan nance and over what period that loan
nance has to be repaid
• the level of interest being paid on the loan, taking into account
that interest rates are likely to uctuate over the duration of
the loan
• the level of investment needed to renovate the property and
meet with statutory standards
• the cost of any management or specialist services to get the
property up to standard and into the lettings market, letting
expenses, advertising and professional fees
• the level of rent to be charged
• the cost of ongoing services to keep the property in good
condition: repairs, gas and electrical servicing, annual
maintenance, cleaning, garden maintenance and so on
• the ongoing investment that will be required to maintain the
xtures, ttings, decor and services (boiler, white goods, grey
goods and furnishings - if let furnished) in good condition
• who will be responsible for the property while the landlord is
away on holiday, business or is unavailable because of illness.
Whilst property investment thrives on optimism, it is also important to be
realistic about the level of rent that can be charged and to allow for some
period when the property might be unoccupied between lets (voids) and
to make some allowance for any bad debts. Every landlord should allow
not less than about a 7% void rate for vacancies and turnaround times
between occupants.
Landlords basing their business plans on low interest rates, short and risky
variable loan rates, charging high rents and not allowing enough funding to
keep the property in tip-top condition, frequently come unstuck.
It is also important to consider cash ow. Just like buying a house for
owner-occupation, most expenditure takes place at the beginning and,
as the loan progresses, repayments become less onerous. Consider what
might happen if outgoings continue but rent is not forthcoming or it is
1. Pre-tenancy
1.1 Investing in a Property
Pre-tenancy 9
1 Pre-tenancy
1.1.1 Private Rented Sector
Markets and the Relevant
Standards
necessary to fund an unexpectedly large repair. Is the cash available to
keep the business or investment running?
Investors thinking about purchasing a property to let, should consider the
nancial and management implications very carefully. Some other matters
to be considered are:
• the demand for rented accommodation in the area in which
the house is located. In many areas, including popular inner
city locations, there may already be an oversupply of rented
accommodation and it could be dicult to nd suitable
tenants
• the sort of market that the property is intended to serve. Each
has its own characteristics, benets and problems [see section
1.1.1]
• the potential investment return. It is important to be realistic
about the returns that can be achieved. When investing in
property, it is more realistic to expect lower short-term gains
and higher long-term prots
• remember that although over time the capital value of
property tends to rise, in the shorter term property prices can
go down as well as up and that capital gains made over time
on a property that has appreciated in value are taxable (see
section 1.8.3)
• the level of experience in managing property and tenancies
required. The knowledge and skills needed to be a landlord
are considerable and the penalties for getting it wrong can be
serious.
Private renting is increasingly popular and of growing importance as part
of the country’s housing stock.
The latest data from the Department for Communities & Local Government
(Footnote English Housing Survey 2010-11 Headline Report, CLG 9
February 2012) shows how the recession has altered the housing market. It
shows that owner-occupation has declined from 70.7% of housing tenure
in 2005 to 66% of tenure in 2010-11 as mortgages have become harder to
get. As a consequence private renting is up, from 11.7% of tenure in 2005
to 16.5% in 2010-11 - a dramatic increase of 48%.
When deciding to let a property it is important to consider what market
that property is entering. Broadly speaking there are ve private rented
sector markets:
• renting to those on benets
• renting to students
• renting to working tenants
• renting to professionals
• luxury lets or corporate lets at the higher end market.
If the property is already in ownership its type and location may already
determine the market to be aimed for. If a potential landlord is looking to
invest in a property, that decision may be inuenced by the location and
type of property that can be aorded. Dierent markets will command
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1.2 Accreditation Schemes
dierent rent levels and will require dierent standards and types of
letting and management. Some of the issues to be considered are:
• professionals will insist on high standards and will expect
showers and sometimes ensuite facilities
• housing benet renters, whilst commanding a lower rent, are
likely to be more stable tenants
• young professionals tend to be more mobile and this may lead
to higher voids and increased re-letting expenses
• renting to sharers or students results in higher occupancy rates
which can maximise rental income. However, the wear and
tear on a property will be substantially higher with a greater
density of occupation. Many students may be living away from
home for the rst time and may not fully understand their
responsibilities towards their property. Renting to sharers
and students is also likely to bring with it the need to meet
regulatory standards that have been set by the Government in
respect of Houses in Multiple Occupation (HMO) and property
licensing. These additional regulatory standards acknowledge
and seek to address the high risks associated with HMOs
• student lets may not extend to a full year
• all tenants will expect a high level of customer care from
landlords and expectations generally rise in line with the
amount of rent paid.
If a mortgaged property, or a room within it, is to be let then it is necessary
to obtain permission from the mortgage lender. If the property is subject
to a long lease, permission may also be required from the freeholder
before renting, and there may be a cost associated with this. This will
be determined by the terms of the lease. Where these are not clear it is
advisable to seek assistance from a lawyer or the local housing advice
service.
Membership of accreditation schemes is voluntary. They enable landlords
to demonstrate that their properties comply with legal standards and good
management practice through the accreditation status.
Local and central Government, professional housing organisations and
landlord associations recommend membership.
Some form of accreditation operates across two thirds of the geographical
areas covered by the 350 local authorities in England and Wales. Schemes
are operated by both landlord organisations and local authorities with
some student-based schemes operated by educational establishments or
related agencies.
Schemes may be locally or regionally operated e.g. Wales and Scotland
have their own national schemes.
The Accreditation Network UK (ANUK) is the national body that publicises,
promotes and shares good practice in accreditation. Detailed information
about accreditation is available from: www.anuk.org.uk.
Pre-tenancy 11
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1.2.1 How Schemes operate
1.2.2 Membership Benets
Schemes work either by inspecting properties and accrediting a property
or a landlord or by training the landlord to ensure they have a certain set
of skills regarding their legal and management obligations and duties.
Skills and training-based schemes often involve a training day or an
interactive web test and are gaining in popularity because of the expense
of undertaking verication procedures by visiting properties.
When properties are visited, sometimes schemes accredit either the
landlord or the property. These require compliance with a set of reasonable
physical and management standards. Schemes relating to students are
more likely to involve the physical inspection of a sample of properties but
there are also some skills-based schemes that have an element of physical
inspection.
Operational details vary according to, and to suit, a range of regional or
local factors.
All proper accreditation schemes meet with ANUK’s four core values which
are:
The Declaration
Accreditation is about accountability: to be accountable there must be a
voluntary declaration by the supplier or manager of the housing to a set of
processes or standards (normally both). The declaration should be regular
and normally should take place once every three to ve years.
Verication
A scheme must verify that those who sign up to meet standards are
doing so. Time has shown that to maintain both consumer and landlord
condence there must be a regular and transparent process that checks
on the standards being met, issues some form of report and where any
shortcomings are identied, a landlord must agree to an improvement
package. Whatever the verication process is, it must be public, realistic
and achievable. A complaints system alone is not sucient to ensure
verication.
Continuing Improvement
Verication should not be simply about standards being met. The notion of
continuing improvement sets the mental tone for accreditation: it is about
doing better from a base standard and accepting that there is always room
for improvement in management outputs.
Complaints
There must be a proper complaints process that should be simple,
inclusive, transparent, rapid and known.
Accreditation status provides landlords with a market advantage.
In addition to this, scheme operators may provide a range of further
benets to encourage membership, the numbers and extent of which may
be determined by available resources.
Benets can be categorised into information provision, nancial e.g.
discounted products and services, and a supportive approach and ‘light
touch’ regulation by local authorities, often accompanied by discounts on
licensing fees.
Access to some property letting services by local authorities, educational
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1.2.3 ANUK/Unipol Codes of
Standards or Larger Student
Developments
1.2.4 UUK Code of Practice
1.3 Letting Options - Means
of Managing Property
1.3.1 Self-managing Landlords
1.3.2 Use of Letting and Managing
Agents
establishments and related agencies may be conditional on membership of
an accreditation scheme.
These two Government-approved national schemes are administered by
Unipol Student Homes.
One scheme is for student developments that are operated and managed
by educational establishments and the second is for private sector
developments.
Licensable HMOs that are owned by educational establishments and are
members of the Educational Establishment Code are exempt from HMO
licensing. Licensable HMOs that are members of the private sector Code
are not exempt from HMO licensing but the Government’s Department of
Communities & Local Government advise local authorities to discount their
HMO licence fee for Code members.
Further details are available from: www.nationalcode.org/
Universities UK (UUK) administers one Government-approved
national scheme for buildings controlled and managed by educational
establishments. This Code has the same purpose as the Codes mentioned
above.
Further details are available from: www.universitiesuk.ac.uk/
POLICYANDRESEARCH/GUIDANCE/ACCOMMODATIONCODEOFPRACTICE/
Pages/Information-for-students.aspx
There are a number of options that can be considered for managing a
property, depending on the owner’s own experience, skills and the amount
of time that is available to be spent on the management process. Each of
the options given below has advantages and disadvantages but careful
consideration should be given to ascertain which option is best to meet any
particular circumstances:
This option is for landlords who are condent that they know their
responsibilities and what constitutes best practice in managing properties.
This option saves the cost of an agent, but can require considerable
investment in time. Self-management may not be suitable for landlords
who do not live close to their properties or who are away from home for
signicant periods of time.
If problems arise, self-managing landlords might require advice from a
professional adviser such as a lawyer or accountant, which will come at
a cost. Landlord associations are a good source of advice and assistance
and can provide much of the information that a self-managing landlord
requires.
Self-managing landlords also have to promote their own properties and
this may entail paying a fee for advertising properties.
If help is required to manage the property, there are at least three options:
a) Letting only
This is where an agent markets the property, advises on rent levels, nds
a tenant, undertakes reference checks (if required), provides a tenancy
agreement and moves the tenant in. The agent charges the landlord a one-
Pre-tenancy 13
1 Pre-tenancy
1.3.3 The Relationship between
the Landlord and Agent
o fee for this, often equivalent to one month’s rent. The agent may also
charge the tenant an administration fee.
Landlords using a letting agent need to agree if they wish to charge a
deposit, what it is for, how much the deposit is to be and if the agent is to
collect it. Any deposit taken for an assured shorthold tenancy (AST) [see
section 3.1.2] must be protected in one of the three Government-approved
tenancy deposit protection (TDP) schemes. It is the landlord’s legal
responsibility to ensure their tenants receive the relevant scheme’s terms
and conditions (known as the prescribed information) which shows that
the deposit is protected by that scheme.
Once the tenancy has started, the letting agent’s job is done and the
landlord then undertakes the ongoing management of the property.
b) Letting and Rent Collection
This is where the agent nds a tenant (as in a) above) but also collects
the rent on behalf of the landlord during the tenancy. Other management
functions such as repairs (and arranging to get possession of the property
at the end of a tenancy if needed) are dealt with by the landlord.
The agent is likely to charge a one-o letting fee and then a monthly fee
(often a percentage of the rent - perhaps 5%) for collecting the rent. With
this type of arrangement, it is important to avoid confusion and to make
sure that the tenant is absolutely clear about who is responsible for which
areas of management.
c) Full Management
This is where the agent acts as a full letting and managing agent. The agent
deals with all management issues: letting and starting the tenancy, rent
collection and repairs.
The managing agent will also take some steps towards ending the tenancy,
for example, they may serve notice but not take court action.
This service is obviously more expensive than the previous options
(perhaps costing between 10-15% of the rent), but it is probably
worthwhile if the property owner either does not have the time to manage
the property or lacks the expertise. It is important that the owner agrees
with the agent what type and cost of repairs they are authorised to carry
out without seeking further authorisation, and what the division of repair
responsibilities will be between the owner and the manager: making it
clear who is supposed to do what.
The agent will usually agree to use the rent they collect to pay for repairs,
but if repair costs exceed income, then the agent is not a bank and the
owner will have to pay any shortfall at that time.
The term ‘agency’ is used in law to describe the relationship between
the principal (in housing this is the landlord) and the agent. The principal
agrees that the agent should act on their behalf in legal relations with
third parties (in housing this is the tenant and any other party that the
agent needs to deal with in managing a property, for example workers
undertaking repairs). The agent also agrees to act on the landlord’s behalf.
The agreement of the agent and principal may be set out explicitly in a
document, or may be inferred from the way they do business together.
14 Pre-tenancy
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1.3.4 Guaranteed Rent ‘Agents’
1.3.5 The Liability of the Landlord
where an Agent is used
1.3.6 The Liability of the Agent in
Agency Agreements
In recent years there has been an increase in the availability of companies
oering a guaranteed rent to landlords, irrespective of whether the
property is rented out or not. In many cases these are not normal landlord-
agent relationships. The landlord assigns (transfers) the property and
all the rights over the property, subject to the terms of the contract, to
a company or individual who pays an agreed fee for the duration of the
agreement. Any tenant renting the property is the tenant of the company
and not of the ‘landlord’ who becomes the superior leaseholder. There
is normally no legal relationship between the original landlord and
any tenant. Because of the variety of schemes it is very important that
landlords carefully read the contract with the ‘agent’ - expert advice may
be needed.
Where an agent is used, actions carried out by the agent on the landlord’s
behalf are generally treated in law as if they had been done by the
landlord. Landlords are bound by any agreement or contract made by their
agent on their behalf with a third party (i.e. a tenant), providing the agent is
acting within the authority they have been given.
If the agent agrees to something which the landlord has not authorised, the
agent will be liable to the landlord and tenant for any losses. The landlord
may not be bound by the agent’s action, and the tenant might therefore
seek compensation from the agent.
If the agent is acting as managing agent for the property and fails to carry
out a statutory duty, such as ensuring that an annual gas safety inspection
is carried out, the landlord may be held liable for the failure as well. Such
responsibilities should be clearly dened in the Terms of Business between
landlord and agent.
A landlord will also be ultimately liable to the tenant for the return of the
damage deposit, whether it is a deposit taken before 6 April 2007 or where
the deposit is protected using an insurance-based scheme.
In view of this, landlords should be very careful when choosing an agent,
making sure they choose one who will carry out their responsibilities
properly. The landlord should also be very clear when giving agents any
special instructions (such as ‘no pets’) to ensure that these are put in
writing. Landlords should consider whether an agent’s standard Terms
of Business protect their interests as well as the agent’s and should take
care to consider any clauses that exclude or limit an agent’s liability for
negligence.
If the agent has acted properly and in accordance with the agreement
with the landlord, an agent will not be liable for a contract entered into on
behalf of his landlord.
If the agent has acted contrary to instructions (for example allowing pets
where the landlord specically said ‘no pets’) it is likely that the agent
will be liable to the landlord and/or the tenant for any losses which
may ow from this. Liability may depend, amongst other things, on the
precise instructions from the landlord and subsequent correspondence or
conversations. The agent is presumed to be authorised to do things that
agents ordinarily do, unless the landlord instructs the agent otherwise.
Pre-tenancy 15
1 Pre-tenancy
1.3.7 Dening Responsibilities in
the Contract
Agents and Possession Notices
Agents can validly serve possession and other notices on behalf of their
landlords. [See Chapter 5 for more detail on possession notices.] Also a
notice of intention to seek possession served on a tenant by a landlord’s
agent will normally be considered validly served if service to the agent is
stipulated in the tenancy agreement.
Agents and Court Claims
Although agents can deal with the notice element of recovering
possession, agents are not legally entitled to initiate legal proceedings on
behalf of landlords [see Chapter 5]. Only claimants or their solicitors are
able to sign the statement of truth on the court forms. The fact that a claim
form for possession is signed by a letting agent is a common reason for the
rejection of possession claims by the County Court.
Frequently, agents will oer landlords the opportunity to take out legal
expenses insurance. If a decision is made not to buy this or this option is
not oered, then it is generally best for the landlord themselves to deal
with any court proceedings which may arise, instructing solicitors directly,
if needed. Although the agent may assist by recommending and liaising
with suitable solicitors, and even if much of the work related to any claim
is delegated to the agent to deal with, it is prudent, as the landlord, to keep
involved and remain aware of what is happening.
When a landlord enters into an agreement with an agent, a written contract
should be drawn up indicating what level of service the agent is oering,
and the agent’s agreed fees. It is important to read the whole contract
and discuss any points that are unclear or where there is disagreement
before signing, so it can either be varied or an alternative agent sought.
The contract should also state how it can be terminated and for what
reasons, including what happens if the landlords wants to take over the
management of the property themselves.
As in many businesses, a small proportion of agents can go out of business
owing both the landlord and tenant money. As the agent may be acting
in the landlord’s name, it is important to know that the agent is reliable
and experienced. Investigate the agent: it is worth trying to get a personal
recommendation (the local landlord association may be helpful here).
Check how long the agent has been in business, how many premises they
manage, what training their sta have received, and whether they are a
member of a professional or trade organisation such as:
• The Association of Residential Letting Agents (ARLA)
• UK Association of Letting Agents (UKALA)
• The National Association of Estate Agents (NAEA)
• Royal Institute of Chartered Surveyors (RICS)
• National Approved Lettings Scheme (NALS).
For student lets, the local college, university or their students’ union may
also run a lettings or management service.
Some associations require funds belonging to the landlord and tenant
to be protected in the event that the agent’s business fails. Check the
associations’ requirements when considering which agent to use.
16 Pre-tenancy
1 Pre-tenancy
1.4 Permissions to let
Property
Fees and costs for services will vary and the cheapest is not always best if
the agent is not an expert in good management practice and housing law.
If the agent does not do the job well, this will reect on the landlord, and it
can have potentially serious implications.
It is also important to choose an agent who is familiar with the type of
property (and that section of the market) that is being let or managed, so
take a look at the other properties the agent has on their books. A friend
could be pressed into service to contact them and make enquiries about
renting a property from them to see how the agent treats a potential
tenant.
Any property owner who has a mortgage or is not a freeholder may need to
secure the necessary permissions before they let the property.
If the owner is a leaseholder then the lease may contain a clause which
states either that sub-letting is not permitted or that the freeholder’s
permission must be obtained prior to sub-letting. It is very important
that this permission is obtained, because if the property is let to tenants
without it (even if permission is sought later) then the conditions of the
lease will already have been breached and the freeholder can take legal
proceedings against the leaseholder.
The freeholder’s permission will generally be a formality and this
permission cannot be unreasonably withheld, but the freeholder may make
a number of enquiries, for instance, if there have been complaints about
noise from former tenants this might be discussed and the leaseholder
might be required to satisfy the freeholder that they have addressed this
issue this time around. It is usual for the freeholder to make a small charge
for granting their permission. If the freeholder does refuse permission
then read the lease carefully to nd out what the lease says about granting
permission and then seek the freeholder’s reasons for their refusal. It may
be possible to address and satisfy any misgivings before there is a need to
take further advice or make the threat of legal proceedings.
If there is a mortgage on the property, one of the terms of that agreement
may be that the owner obtain the lender’s permission before the property
is let, even if only one room is being let This is because the mortgage
lender will be concerned to make sure that nothing is done that may aect
the value of the investment and the lender’s ability to recover the loan that
was made when the property was purchased.
It is important to check the terms of any mortgage. For many buy-to-
let mortgages permission to rent the property may be automatic, but
even in buy-to-let mortgages there may be conditions on the type of let
permissible e.g. ‘assured shorthold tenancies only’ [see section 3.1.2
for an explanation of assured shorthold tenancy] or a restriction on
Housing Benet/Local Housing Allowance tenants. If, as an owner, these
requirements are not fully understood then seek advice from a solicitor
- the one who assisted with the purchase should be able to help. If it is
proposed to let the property as ‘rooms’ or bedsits which will create a
House in Multiple Occupation (HMO) [see Part 2] this must be made clear as
special permission may need to be sought for this and conditions may be
imposed that will need to be met.
If the property was purchased for an owner-occupier on a standard
mortgage for home owners, then permission will need to be obtained to let
the property to tenants. The lender may increase the cost of the mortgage
Pre-tenancy 17
1 Pre-tenancy
1.5 Energy Performance
Certicates
or change its terms if permission to let the property to tenants is given.
Usually a lender will not object to one room in an owner-occupier’s home
being let to a lodger.
Landlords are required to have an Energy Performance Certicate (EPC)
when a property is let to a new tenant. The purpose of the EPC is to show
prospective tenants the energy performance of the dwelling they are
considering renting.
The EPC has undergone signicant review with a newly designed certicate
coming into use from 1 April 2012.
The older certicate (before 1 April 2012) shows two things; the energy
eciency rating (relating to running costs) and the environmental impact
rating (relating to the carbon dioxide emissions) of a dwelling. It is
shown as coloured graphs similar to those found on, for example, fridges
and other domestic appliances. The rating is also accompanied by a
recommendation report that shows how to improve the dwelling’s energy
eciency.
The new certicates show the energy eciency rating only but goes into
more detail by comparing the home’s energy performance related features
with the average ratings. The new certicates also draw specic attention
to the ‘Green Deal’.
Once an EPC is obtained it is valid for 10 years unless the property is sold
and a new EPC must be obtained at that point.
The EPC should be arranged before the property is advertised and a copy
must be available to tenants, free of charge, before they are given written
details, arrange a viewing or agree a letting. The actual tenant who takes
the property should be given a full copy of the EPC including the assessor’s
recommendations.
It is a requirement to provide an EPC when the property is let as a separate
(or self-contained) dwelling. This also applies if a whole house or at is
being let to a group of sharers on only one contract. It is not a requirement
to provide an EPC if only a single room in a house is being let or if a house
is let room by room on separate contracts.
Breaking the EPC rules can result in a £200 xed penalty notice from
Trading Standards.
EPC are completed by registered Domestic Energy Assessors (DEAs). An
assessor can be found at www.hcrregister.com/searchAssessor.html or
seek recommendations from friends and contacts. Once commissioned, the
EPC is valid for 10 years or until a new EPC is produced.
The following guides are available on the CLG website:
• Energyperformancecerticatesfordwellingsinthesocial
and private rented sectors: A guide for landlords: www.
communities.gov.uk/documents/planningandbuilding/
pdf/957171.pdf
• EnergyPerformanceCerticates(EPCs)andrentinghomes:
A tenant’s guide: www.communities.gov.uk/publications/
planningandbuilding/epcsrentingtenants
18 Pre-tenancy
1 Pre-tenancy
1.6 Green Deal
Although the EPC may suggest a number of improvements that could be
made there is no legal obligation to undertake any of these works but it is
advisable to discuss with prospective tenants which (if any) of the energy-
saving recommendations might be carried out or might already have been
carried out. By being transparent about this and managing the tenant’s
expectation a potential complaint may be avoided.
There are provisions in the Energy Act 2011 to ensure that from April 2018
it will be unlawful to rent out a residential or business premise that does
not reach a minimum energy eciency standard (the intention is for this to
be set at EPC rating ‘E’). Landlords with a property where this rating might
apply will need to consider how the energy performance of the property
can be improved by that time.
The Green Deal was established by the Energy Act 2011 and is a
Government initiative designed to help meet the upfront cost of making
buildings more energy ecient. It will be available to landlords, tenants,
home owners and small businesses, and is intended to be one of the key
measures for meeting the interim carbon reduction targets established
in the Climate Change Act. For the private rented sector it has added
importance because of its link to the energy eciency enforcement
proposals due to be enacted sometime before April 2018 and discussed
above in the Energy Performance Certicate section.
The Green Deal is to be launched in late 2012, and will allow the
installation of energy eciency measures without any upfront cost to
either the property owner or occupier. The Green Deal is not a personal
loan but a charge placed out on the electricity meter. The cost of the
measures will be recovered through instalments on the electricity bill over
several years, and as such there is no requirement for the current bill payer
to continue paying the instalments if they move house. If they move out,
the new occupant (tenant) will pick up the charge while also beneting
from a more energy-ecient property.
As the charge is attached to the electricity meter it will be the tenant who
pays for the installation.
There is a ‘golden rule’ which applies to the Green Deal nance model and
that is the expected savings from the energy eciency works must equal
or exceed the cost of the improvements. In principle the bill payer (tenant)
should not be paying out more once the works are completed than they
were before the improvements and in theory there may be a net saving on
their fuel bills.
For work such as solid wall insulation or where the occupier is on very low
income, who frequently use less energy than average, the Green Deal will
not be able to fund the improvement works because of the golden rule. In
these cases there will be grant funding from the energy providers, known
as the Energy Company Obligation, or ECO, which will also start in late
2012.
There are several companies which provide the Green Deal including
British Gas, EON, Scottish and Southern Electricity and Kingsher (B&Q)
Green Deal Protections
Pre-tenancy 19
1 Pre-tenancy
1.7 Insurance
The Government is aware that for the scheme to be a success consumers
must have condence in the scheme and consumer protection is a key
requirement.
The person proposing to take out a Green Deal must get the written
permission of all persons with an interest in the property. In the private
sector these will include the landlord, current tenant, freeholder, any head
leaseholder, mortgage company etc, plus any necessary permissions from
the authorities, e.g. planning, building regulation etc.
To ensure future tenants are made aware of the existence of a Green Deal
charge, a clause must be inserted into their tenancy agreement, or a
separate document prepared, and must be signed by them making it clear
they are aware of the charge.
The assessment of the energy improvement works must be carried out by
an accredited assessor, and the works carried out by an accredited installer.
The works once completed will be guaranteed for the life of the Green Deal
charge.
Buildings insurance covers the risk of damage to the structure and
permanent xtures and ttings of a building, for example, as a result of re.
If the property is leasehold, then the freeholder will normally arrange the
buildings insurance and re-charge the cost to lessees.
Tenants are usually responsible for providing their own contents insurance
to cover their personal belongings. This is a matter for the tenants. It is not
possible to require them to do this.
The landlord should take out contents insurance to cover loss or damage
to household goods that have been supplied by them, e.g. white and grey
goods, carpets, curtains and, in the case of furnished lets, other furniture
and ttings.
Insurance for rented property is usually more expensive than for owner-
occupied accommodation and insurance aimed at owner-occupiers will
not necessarily be suitable for rented property. The Association of British
Insurers produces guidance for owners which explains how insurers assess
risks and what can be done to secure cover. If the insurance company is not
informed that a property is occupied by tenants (instead of being owner-
occupied) this is likely to invalidate the insurance, and any claim made will
either be refused or any pay out will be reduced. Remember, that insurance
cover, like the mortgage, may come with conditions attached governing the
type of tenant that the property is let to.
There are special policies for landlords that provide cover for additional
risks such as the loss of rental income and the cost of temporary
accommodation where a property has been made uninhabitable as a result
of one of the insurable risks. Insurance can also provide additional cover
for the landlord in case the tenant is injured as a result of an accident in the
property together with other elements not necessarily covered by normal
householder insurance.
The insurance market is extremely competitive and it is worth shopping
around to nd the best value for money. Landlord organisations often oer
lower-cost insurance to members.
The tenancy agreement should take account of any implications of the type
20 Pre-tenancy
1 Pre-tenancy
1.8 Tax
1.8.1 Income Tax
of insurance cover there is: for example, if the insurance places an upper
limit on the cost of temporary accommodation it may be worth, within the
tenancy, limiting liability to the insured amount.
Tax is an aspect of residential property investment which is often
overlooked. There are many twists and turns to consider at all levels,
whether it be for income tax, capital gains tax or inheritance tax, and it is
important to get the structure of ownership right and to make sure that all
tax relief, allowances and claims are made.
This section summarises some of the main aspects of the principal areas
of property tax. There are many detailed aspects to consider at each stage,
and it is very important to obtain good professional advice if there are any
doubts as to the applicability of any rule. Tax decisions can be inuenced
by what other income and assets the tax payer has and will not necessarily
be the same for every property investor.
All areas of tax require the practice of good record-keeping (this is equally
applicable when a property is sold). It is essential that full and accurate
records are kept of all income and expenditure, perhaps maintaining a
separate bank account for these, so that all of the information is readily
available to allow the tax payer to claim the maximum deductions and pay
the minimum amount of tax. Failure to keep adequate records can result in
penalties.
If the landlord is a new property investor HM Revenue & Customs (HMRC)
should be notied immediately of the new source of income which the
landlord is now receiving. The tax is computed through an annual tax return
sent to HMRC.
Income tax is payable on prots made from the property-renting business
by computing the total of rents receivable less expenses. Tenants’ deposits
do not count as income. Typical expenses which can be deducted include:
• repairs and maintenance (though not initial expenditure
needed to bring the property up to a letting standard, or
improvements)
• gardening
• cleaning
• ground rents
• service charges
• contents and building insurance
• managing agent’s fees
• legal fees for tenancy agreements
• advertising
• HMO licence costs
• interest (not the capital repayments) on loans used to buy or
improve the property
• water rates
• Council Tax
• heating
• lighting
• security
• accountancy fees
• subscription to a landlord association; motor and travelling
expenses for visiting the property and for attending to matters
relating to let properties.
Pre-tenancy 21
1 Pre-tenancy
1.8.2 Structure
1.8.3 Capital Gains Tax
A special wear and tear allowance of approximately 10% of the rents
received can be claimed if the property is let furnished.
This list is not exhaustive and can vary in individual circumstances.
A special tax allowance exists if the landlord undertakes certain
improvements to the property to increase energy eciency, known as the
Landlords’ Energy Saving Allowance (LESA). Further details can be obtained
from www.hmrc.gov.uk/manuals/pimmanual/PIM2072.htm
On the question of repairs and maintenance, it is important to distinguish
between items of repair and items of improvement. Redecorating rooms,
changing windows from single to double-glazing, or replacing a defective
roof are examples of repairs which will be allowable. The addition of
another oor to the building, or a new conservatory would not qualify
and tax relief would only be received on the eventual sale of the property,
being set against the eventual capital gain.
Where properties are owned in joint names, then the prots can be shared
between the joint owners or, in certain circumstances, can be wholly
attributable to one or other of the joint owners.
Where a husband and wife own a property jointly, the income is
automatically assessed equally, even if the actual ownership proportion is
not equal, unless they elect otherwise.
For Capital Gains Tax purposes, the proportionate ownership is important,
and any capital gain would be shared between the joint owners in their
respective proportions giving rise to multiple tax-free allowances.
In certain circumstances, it may be worthwhile for a limited company to
be brought into the structure. It is normally sensible for the properties
themselves to be held in individual or joint names, but these can be sub-let
to a company which then lets the properties to tenants. Professional advice
should be sought to look at the best structure for any given landlord to use
to own investment properties.
Capital Gains Tax (CGT) is a tax on the gain or prot made when shares or
property are sold, given away or otherwise disposed of. There is a tax-free
allowance and some additional reliefs that can reduce a Capital Gains Tax
bill.
Capital Gains Tax is one of the most important taxes to consider as
property prices will usually rise over the long term. As the amounts at
stake are potentially signicant, it is important to make sure that all of the
available tax relief and allowances are taken advantage of. Many of these
oer scope for substantial reductions in the ultimate amount of tax to be
paid.
The basic concept is quite simple: the nal price received for the property
when it is sold (after deducting legal costs and agent’s fees) is compared
with what the property cost initially (including any legal fees and Stamp
Duty), and the prot or ‘gain’ is calculated on which tax is levied.
There are then potential deductions and tax relief available, the most
important of which are as follows:
• the cost of any improvements to the property whilst under
22 Pre-tenancy
1 Pre-tenancy
1.8.4 Inheritance Tax
1.8.5 Stamp Duty
1.8.6 Value Added Tax
ownership can be deducted (but not the cost of repairs which
has previously been set o against Income Tax)
• if the property has been occupied by the owner as an owner-
occupier at any time, then there are two additional very
valuable reliefs:
- lettings relief whereby up to a certain amount of any gain
per owner can be tax free
- a proportionate principal private residence relief
• if the property was owned at March 1982 its value at that
date is substituted for the original cost of the property in
calculating the ultimate gain
• set value of any capital gains in a single tax year is tax-free per
individual (not per property), tax only being charged on any
gain above that value
• if there are two properties which have been used as a
residence (e.g. one in London and one in the country), it is
worthwhile making a principal private residence election
on one of those properties to maximise capital gains relief.
This will also reduce the potential CGT payable if one of the
properties is let at any time in its ownership.
Where a property is owned at the date of death, the value of that property
forms part of the estate and is potentially liable to Inheritance Tax (IHT). If
the property is left to a spouse in a will, then no IHT will be payable until
the death of the spouse.
There are ways of reducing the Inheritance Tax liability. A tax-ecient will
should be drawn up to ensure maximum use of IHT allowances.
Wills and trusts are specialist areas where it is important to obtain
professional advice. Advice will vary depending on the individual’s
circumstances.
Stamp Duty Land Tax (SDLT) is payable by the purchaser within 30 days of
the purchase, so this should be taken into account when budgeting for a
purchase. No Stamp Duty is payable below the prevailing threshold, but
above the nil-rate threshold the applicable rate of SDLT will depend upon
the price paid. There are reliefs available in ‘disadvantaged areas’ – but
these only apply to the lower-value properties in those areas. The list of
disadvantaged areas is much longer than one would imagine, so it is always
worth checking to see whether relief is available. Go to www.hmrc.gov.uk
and search on ‘Postcode Search Tool’ to see if a property could qualify.
The value of any xtures, ttings or furniture included in the purchase can
be excluded from the purchase price in calculating the Stamp Duty payable,
though the Stamp Duty Oce will look at any obvious overloading.
Under normal circumstances, landlords cannot register for Value Added Tax
(VAT) in relation to their residential properties, as residential rental income
is exempt from VAT. This means that any VAT incurred cannot be reclaimed.
However, landlords who are VAT-registered in their own self-employed
businesses may be able to claim some VAT incurred.
A special VAT rate of 5% is available on the renovation or alteration of
a single household dwelling that has not been lived in for three years or
more, so that this is a useful saving over the normal 20% rate.
Pre-tenancy 23
1 Pre-tenancy
1.9 Council Tax
1.10 Sources of Advice
More information on tax can be obtained from a local tax oce or visit HM
Revenue & Customs website at www.hmrc.gov.uk. Copies of leaets on
taxation of rents and other tax matters can be downloaded from HMRC’s
website, or can be requested by phoning the Order Line on 08459 000 404.
In self-contained ats or houses, the tenant is liable for Council Tax.
Landlords should notify the local council of the name of the tenant and
when they moved in.
If the property is empty, the landlord will be liable for Council Tax,
but an exemption can be sought for up to six months if the property is
unfurnished.
Students undertaking full-time education courses are exempt from Council
Tax, but students have to apply for exemption. Their education institution
will be able, on request from the student/s, to provide them with a notice
that they are a full-time student and liable for exemption. If their tenancy
agreement extends over the summer vacation, the exemption also covers
that period.
If there is more than one tenancy agreement for the property (e.g. if it
is divided into bedsits), then the rules are more complex and will vary
depending upon the policy of the council in that area and the layout of
the property. Traditionally in a bedsit type property the landlord was
responsible for payment of Council Tax and collected this through the
rent charged to tenants. Recent Valuation Tribunal rulings have stated
that the liability for Council Tax depends upon the location and number
of kitchens and not whether it is self-contained. A bedsit with its own
kitchen, but sharing a bathroom and WC, may still be rated as an individual
unit for Council Tax purposes making the tenant liable for the Council Tax.
Whereas a bedsit with an ensuite bathroom, but sharing a kitchen, the
liability would lie with the landlord. A bedsit type house with two shared
kitchens may be rated for Council Tax purposes as two separate units, three
kitchens – three units etc. Some councils still take the traditional view, but
more areas are issuing Council Tax demands based on the availability of
kitchens and it is important to seek advice from the local Council Tax team.
Students should be asked to provide proof of study to the landlord, where
the landlord is liable for Council Tax. The landlord can then apply to the
council for their exemption.
A tenant over 18, living alone in a property will qualify for a 25% discount
from their Council Tax bill.
Landlords should inform the Council Tax section of the local authority in
writing whenever someone moves in or out of their property, or if it is
empty.
If a letting or managing agent is being used, they should be able to provide
some free basic advice about housing law as part of their services.
The local authority or local Citizens Advice Bureau can also provide simple
information on housing law.
Some excellent leaets are available from the CLG website www.
communities.gov.uk/housing/privaterentedhousing/ (or follow the links
for Housing, then Private Housing, then Private Rented Housing).
24 Pre-tenancy
1 Pre-tenancy
1.11 Membership
of a Landlord
Association
1.12 Useful Contacts for
Landlords
Publications are available free of charge from:
CLG Publications, PO Box 236, Wetherby, LS23 7NB
Tel: 0870 1226 236, Fax: 0870 1226 237,
Textphone: 0870 1207 405,
Email: communities@twoten.com
Most landlords now have access to the internet, and a search for landlord
legal advice can lead to a number of sites giving free basic information and
oering other services where a charge is made. [See Appendix 5 - Useful
contacts for landlords.]
Landlord associations usually oer members free basic legal advice. If more
detailed legal advice, representation or advocacy is needed then it may be
necessary to consult a solicitor. Make sure the solicitor used is experienced
in landlord and tenant law. It is best to go by personal recommendation.
The local landlord association will be able to suggest suitable rms. Firms
specialising in work for landlords often advertise on landlord-related
websites on the internet. Remember to keep receipts for any legal costs
incurred because it may be possible to obtain tax relief against these
payments.
Be careful when reading BLOGs: there is a lot of urban myth out there and
other landlords are not always a reliable source of information.
There are a number of landlord associations [see Appendix 5 - Useful
contacts for landlords] and it is worth considering paying to join and
become a member. Membership normally includes:
• a regular newsletter giving advice
• updates on housing law or policy as they change
• the chance to make representations on proposed changes to
regulations, the law or tax
• discounts for services such as insurance
• individual advice if there is a problem.
Landlord associations normally hold periodic meetings where there is an
opportunity to meet other landlords and discuss issues and problems.
Through the network of other members ideas and procedures can be
obtained to resolve problems on how to manage more successfully.
Many of the most useful contacts are on the internet. For those
without access to the internet, most libraries oer free internet access.
Alternatively, the library can provide telephone contact numbers for
dierent services within a local area. [See Appendix 4 - Where to get help.]
The Responsibilities and Liabilities of the Landlord/Letting agent 25
1 Pre-tenancy
2.1 Landlords’
Responsibilities for
Repair and Maintenance
2.2 Implied Terms in
Tenancy Agreements
2.3 Common Law Implied
Terms
2.3.1 The Right of a Tenant to
Quiet Enjoyment of a Rented
Property without Intrusion
or Disturbance by a Landlord
In addition to any repair responsibilities explicitly set out in the tenancy
agreement, common law and statute will imply terms to the agreement
between landlord and tenant. These terms form part of the contract, even
though they have not been specically agreed between the two parties.
Specic obligations to repair are set out in detail in the sections below. As
a general rule the building itself and the immediate surroundings should
be able to withstand normal weather conditions, and normal use by tenants
and their visitors.
The property should be in a reasonable state of repair both internally
and externally and t for human habitation at the start of the tenancy.
There should be no dampness, either in the form of rising or penetrating
damp, from the outside. Condensation may be as a result of the
tenant’s behaviour but it may also have implications for the landlord
if the ventilation is inadequate or some structural problem is causing
it. An investigation of the cause will be needed to be able to decide
responsibility.
Statutory and common law requires that there should be no unacceptable
level of risk to the health or safety of the occupiers or their visitors.
Remember that if the tenant or visitors have an accident or suer injury
due to the poor condition of the property (for example a fall caused by a
broken handrail or respiratory diseases caused by damp conditions), the
landlord may be liable to them for damages for personal injury.
Implied terms are those that are considered to be part of a legal lease,
tenancy agreement and/or licence even though they are not actually
written down in that document. Implied terms can arise from common law
and/or statute.
Note: any attempts to evade statutory or common law rights and
responsibilities by way of any standard term in the tenancy agreement,
may result in the relevant term being found void under the Unfair Terms in
Consumer Contracts Regulations 1999. Examples might include a clause
requiring rent to be paid without set-o (as this would be an attempt to
exclude the tenant’s common law right to set o against the rent any debt
owed to the tenant by the landlord) or a clause term requiring the tenant
to be responsible for repairs to the gas appliances (as this is the landlord’s
statutory responsibility).
The main terms implied by common law are detailed below:
This right is implied into all tenancies which entitles the tenant to live
in the property without disturbance from the landlord or people acting
on the landlord’s behalf. Generally a landlord does not have the right to
turn up unannounced to check on a property or tenant. It must be agreed
mutually beforehand, where the landlord wishes to enter for a specic
purpose, such as repairing a window. It has been held that breach of the
repairing covenants can also be considered to be breach of the covenant
of quiet enjoyment. A right of quiet enjoyment is often written into the
tenancy agreement because then the landlord can limit or widen the
scope of the implied obligation, or even make the covenant for quiet
enjoyment conditional on the tenant complying with their own obligations.
Where there is a covenant for quiet enjoyment written into the tenancy
agreement, the tenant will be entitled to have the landlord comply with
that covenant.
2. The Responsibilities and Liabilities of the Landlord/Letting Agent
26 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.3.2 Tenant must use the
Property in a Tenant-like
Manner
2.3.3 The Tenant shall not permit
Waste
2.3.4 Fair Wear and Tear
2.3.5 The Tenant must not use the
Rent to pay for Repairs,
except in very Limited
Circumstances
2.4 Statutory Implied
Terms
2.4.1 Landlord and Tenant Act
1985
2.4.2 Access to Property
This has been dened in case law as ‘to do the little jobs about the
place which a reasonable tenant would do’ such as unblocking sinks
when blocked by the tenant’s waste, keeping toilets and drains clear,
regular cleaning including windows, putting refuse out for collection and
gardening if applicable.
The tenant has the responsibility to ensure the property is not damaged
deliberately and is kept clean and free from rubbish during the course of
the tenancy.
The tenant should leave the property in the same condition as when they
took possession, fair wear and tear excepted.
Repairs must be reported to the landlord/agent. Using rent for any other
reason could result in eviction from the property.
Section 11 of the Landlord and Tenant Act 1985 implies a term into tenancy
agreements for less than seven years that the landlord shall keep in repair:
• the structure and exterior of the dwelling
• the installations for the supply of water, gas, electricity and
sanitation
• the installations for the supply of space heating and water
heating and
• the communal areas and installations associated with the
dwelling (section 11 as amended by section 116 of the
Housing Act 1988), where these are controlled by the landlord.
The Act also provides that the standard of repair necessary will vary
depending on the ‘age, character, and prospective life of the property and
its location’.
Section 11 – sub-section (6) implies a term into the tenancy agreement that
landlords with section 11 repairing responsibilities (or people authorised
by them) have the right to access the property for the purpose of viewing
its condition and state of repair. Access can only be at reasonable times of
the day and after giving the tenant not less than 24 hours’ notice in writing.
This section does not extend to actually carrying out the repairs. The
right to enter for the repair would be an implied term, as the law says the
landlord must do the repair, it is implied he or she has the right to enter
to do it. However, the right to enter to do repairs (subject to notice being
given) is generally included in tenancy agreements and if the tenant
refuses to allow the landlord access to carry out the repairs, the tenant will
not be in a position to complain about the property or to claim for damages
for disrepair or for personal injury caused by the disrepair.
Indeed if the tenant’s failure to allow the landlord access to do the works
results in further deterioration or damage to the property, the tenant may
be liable to the landlord (entitling the landlord, for example, to deduct the
additional costs incurred from the damage deposit).
Note that although section 11(6) gives the landlord the right to enter the
The Responsibilities and Liabilities of the Landlord/Letting agent 27
1 Pre-tenancy
2.4.3 Breach of Repair Obligations
property (after having given notice), this does not mean that the landlord
is entitled to enter the property at that time, irrespective of whether the
tenant asks the landlord not to. However, if the particular appointment
time is inconvenient, the tenant will be expected to consent to an
appointment at another time.
If the tenant refuses to allow the landlord access at all, the tenant will be
in breach of their tenancy agreement, because the right of access is an
implied term of the agreement). In some circumstances (for example if the
property is clearly in disrepair) this may entitle the landlord to apply for an
order for possession.
Generally, landlords should be wary about entering the property when the
tenant is not there. Where a tenant has given permission, but has advised
they will not be at the property themselves, it is recommended that
landlords/agents are best accompanied by a witness.
The landlord will be able to pass on the cost of works or repairs to the
tenant if work is needed because of the tenant’s breach of their obligations
under the tenancy.
Action can be taken by the tenant in the County Court for breaches of the
landlord’s repairing obligation. This is a civil action and tenants can claim
compensation for damage and inconvenience resulting from the breach.
The landlord should receive notice of this in advance of any claim being
brought, as tenants are now obliged to comply with the ‘Pre-action Protocol
for Housing Disrepair’. This protocol provides that tenants must inform
their landlord in writing (an ‘early notication letter’ followed by a ‘letter
of claim’) of all relevant matters before issuing legal proceedings. The
protocol gives full details of the information to be provided and specimen
letters. If the tenant does not comply with the protocol, the landlord can
ask the court to stay the claim until the provisions of the protocol have
been complied with. A copy of the protocol can be downloaded from HM
Courts Service website at www.hmcourts-service.gov.uk.
Section 17 of the Landlord and Tenant Act 1985 requires specic
performance (saying the landlord will have to do the repair) where there
has been a breach, i.e. the payment of compensation may not be sucient
remedy.
This means that the County Court can make an order requiring the landlord
to full the express or implied repairing terms of the tenancy agreement.
The County Court can make an injunction requiring the landlord to do
repair work which may or may not be within the terms of the contract. If
the landlord fails to carry out the works required by the court order, the
landlord, or his agent, can in very extreme situations be committed to
prison for contempt. The County Court can alternatively direct that the
repairs be undertaken by, or on behalf of, the tenant at the landlord’s
expense.
Damages (compensation) can still be claimed even if the works have been
carried out by the time the case reaches court.
In practice it is rare for these extreme measures to be used. However, it is
important to be aware that these penalties exist, and every care should be
made to respond promptly to repairing obligations when they arise. It is,
after all, protecting any nancial investment. If the property is properly
28 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.4.4 Defective Premises Act
1972
2.4.5 Occupiers’ Duty of Care
2.5 Housing Health and
Safety Rating System
insured some work may be covered by the insurance policy.
Section 4 of the Defective Premises Act 1972 places a duty of care on the
landlord in relation to any person who might be aected by a defect, ‘to
take such care as is reasonable in all the circumstances to see that they
are reasonably safe from personal injury or from damage to their property
caused by a relevant defect’.
This is civil redress. A defect is relevant if the landlord knew about it or
should have known about it - the fact that a defect has not been reported
or there has been a failure to inspect (e.g. rotten oorboards or joists) does
not remove liability. It is for this reason that it is important that landlords
(or their agents) carry out regular checks on the property.
In this case the premises include the whole of the letting - i.e. including
gardens, patios, walls, etc - and can be applied to the communal areas of
estates or multi-occupancy buildings, including lifts, rubbish chutes, stairs
and corridors. Section 4 provides tenants or other aected persons with the
right to seek compensation for personal injury or damage to property.
Section 2 of the Occupiers’ Liability Act 1957 provides that the occupier of
a property has a duty of care to all visitors who come onto their premises.
This applies to landlords where they are the legal occupier of some parts
of their rented stock, e.g. shared-use areas such as lifts, staircases and
entrance lobbies – in some cases even grounds and car parks.
The duty means taking such care as would be reasonable in all
circumstances to see that the visitor is reasonably safe in using the
premises for its purpose. The landlord is liable for any injury caused to
a visitor as a result of defects in the part of the building occupied by the
landlord.
The Law and Landlords’ Obligations
The Housing Act 2004 places a statutory duty on local authorities to
identify hazards and to assess tenants’ risks to health and safety. Local
authorities are required to use a system called the Housing, Health and
Safety Rating System (HHSRS) to identify and assess risks. Section 3(1) of
the Act states:
‘A local housing authority must keep the housing conditions in their area
under review with a view to identifying any action that may need to be
taken by them under any of the provisions mentioned in sub-section (2).’
Depending on the seriousness of risk, local authorities assess hazards as
either category 1 or category 2 hazards. Section 5 describes the duty on
the local authority to take enforcement action where a category 1 hazard
exists.
In practice, how local authorities discharge their duty under section 3(1)
varies. In some cases local authorities are proactive in carrying out an
assessment of the private rented sector stock in their areas but others
are now only able to oer a reactive service, responding to requests for
assistance from both tenants and landlords.
Although not a general legal obligation, it is useful for landlords to be able
to identify and risk-assess health and safety hazards at their properties and
take remedial action where necessary. Most local authorities are keen to
The Responsibilities and Liabilities of the Landlord/Letting agent 29
1 Pre-tenancy
2.5.1 Hazards
2.5.2 Risk Assessment
work with landlord groups in their area to make sure landlords are aware
of the local authority’s responsibilities, powers and duties under the Act
and a prudent landlord will be proactive in seeking to ensure that their
properties are of a standard that does not attract the interest of the local
housing authority.
The HHSRS lists 29 hazards that landlords need to be aware of.
Physiological:
• damp and mould growth
• excess cold
• excess heat
• asbestos and manufactured mineral bre
• biocides (e.g. damp and timber treatment products)
• carbon monoxide and fuel combustion products
• lead
• radiation
• uncombusted fuel gas
• volatile organic compounds.
Psychological:
• crowding and space
• entry by intruders
• lighting
• noise
Infection:
• domestic hygiene, pests and refuse
• food safety
• personal hygiene, sanitation and drainage
• water supply for domestic purpose
Accidents:
• falls associated with baths
• falling on level surfaces
• falling associated with stairs and steps
• falling between levels
• electrical hazards
• re
• ames and hot surfaces
• collision and entrapment
• explosions
• position and operability of amenities
• structural collapse and failing elements
The HHSRS is a technical system and is best used by persons with a
technical health and safety or building construction background.
The HHSRS is available at:
www.communities.gov.uk/documents/housing/pdf/142631.pdf.
There are a number of landlord guides to the HHSRS available through the
internet that provide an understanding of HHSRS without going into its full
details.
30 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.5.3 Vulnerable Groups
One such guide provided by the Government, is entitled Housing Health
and Safety Rating System – Guidance for Landlords and Property-related
Professionals available at www.communities.gov.uk/publications/housing/
housinghealth
In practice it is very challenging for landlords to acquire the skills necessary
to use the HHSRS to accurately risk-assess hazards as category 1 or 2.
To help landlords to identify potential category 1 hazards and prioritise
them for action a simple guide to risk-assessing hazards is provided below:
The risk from a hazard is a combination of:
• the likelihood of a hazard, over a 12-month period, causing
harm sucient to require some medical attention and
• the potential seriousness of harm from that hazard, should
harm occur.
A risk assessment of a hazard that indicates high likelihood of harm,
and high potential seriousness of that harm, means that the hazard may
potentially be high risk and therefore in need of remedial action to reduce
the risk to a more acceptable level.
Step 1 Familiarise yourself with the 29 HHSRS hazards, especially the most
commonly occurring.
Step 2 Ask yourself whether the likelihood of harm occurring over a
12-month period from an identied hazard is high.
Step 3 Ask yourself whether the potential seriousness of that harm would
be high.
If the answers to steps 2 and 3 are YES, then the hazard is a high-risk
hazard.
Example
Assessing the risk of falling down a stair.
If a stair is long, steep, in disrepair, has a loose worn covering, has varying
sizes of treads and risers, does not have a handrail or adequate articial
lighting along its length, then the likelihood over a 12-month period of
someone falling will be high.
If at the bottom of the stair there is a hard oor surface, a wall mounted
radiator with sharp corners and a non-safety glazed door, then the
seriousness of a fall is likely to be high.
The combination of high likelihood of an accident and high potential
seriousness of harm means that the risk of the hazard of falling down the
stair is high, liable to be a category 1 hazard and in need of high priority
remedial action.
Young and elderly persons are more at risk from the following hazards
in particular than young able bodied adults: cold, falls, re, hot surfaces,
dampness, food safety and entry by intruders.
The Responsibilities and Liabilities of the Landlord/Letting agent 31
1 Pre-tenancy
2.5.4 Property Inspection Form
2.5.5 HHSRS Enforcement
Landlords letting properties to elderly persons or families with young
children should be particularly mindful of these hazards when carrying out
risk assessments and should provide additional protective means where
necessary.
To assist landlords to identify and risk-assess hazards on site and record
any necessary remedial works, a property inspection form is provided in
Appendix 3 of this handbook.
Although not a legal requirement it is recommended that an inspection
form is completed for each property and a copy kept on le.
In the event that a property is inspected by a housing standards
enforcement ocer, then providing the ocer with a copy of the property
inspection form will provide a strong indication that the landlord takes
their health and safety responsibilities seriously.
The form provides, room by room, a list of potential defects and
deciencies that can give rise to hazards.
The seriousness of the defects and deciencies can be scored as:
1. not satisfactory
2. defective
3. seriously defective
Before inspecting a property, landlords need to copy the appropriate
number of pages of the inspection form that will be needed.
For example if the property has two bathrooms then two copies of the page
covering bathrooms need to be printed o. It is a good idea to carry spares.
There is a Summary of Property Inspection at the end of the form to
provide a summary of any hazards identied as needing remedial action.
The remedial action can be prioritised as low, medium or high.
The nal page of the form is to complete as an action plan with timescales.
Local authorities have statutory duties and powers to take enforcement
action to deal with properties containing hazards identied under the
HHSRS. Under the HHSRS local authorities have a duty to take appropriate
enforcement action in relation to category 1 hazards, and discretion to act
in relation to category 2 hazards.
If a hazard presents a severe threat to health or safety it is known as a
category 1 hazard.
If a local housing authority considers that a category 1 hazard exists on any
residential premises, they must take the appropriate enforcement action in
relation to the hazard.
Less severe threats to health and safety are known as category 2 hazards
and a local authority may take appropriate enforcement action to reduce
the hazard to an acceptable level. The circumstances in which local
authorities will take action over category 2 hazards will vary and will
depend on the individual local authority’s enforcement policy.
32 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.6 Decent Homes Standard
(applicable to England only)
2.7 Gas Safety
2.7.1 Gas Safety (Installation
and Use) Regulations 1998
Although statutory action is mandatory for category 1 hazards and
discretionary for category 2 hazards, the choice of what course of action is
appropriate is also a matter for the local authority and it will depend on the
individual local authority’s enforcement policy.
The authority must, however, take into account the statutory enforcement
guidance and the options available include:
• serving an improvement notice requiring remedial works
• making a prohibition order, which closes the whole or part of a
dwelling or restricts the number of permitted occupants
• suspending the above types of notice for a period of time
• taking emergency action itself
• serving a hazard awareness notice, which merely advises that a
hazard exists, but does not demand works are carried out
• demolition
• designating a clearance area.
Additional information can be obtained from the CLG, in particular the two
guidance documents:
• Housing Health and Safety Rating System: - Guidance for
Landlords and Property Related Professionals
• Housing Health and Safety Rating System: - Operating Guidance
The decent homes standard was a measure of general housing conditions
introduced by the Government in 2000. Although private landlords were
not directly required to take any action to bring their properties up to this
standard, the Government set targets for local authorities. However, from
April 2008, all other sets of indicators, including Best Value Performance
Indicators and Performance Assessment Framework Indicators, have been
abolished.
It is vital that landlords clearly understand their responsibilities and
obligations in relation to gas supply and appliances and the duties and
responsibilities placed on them by the gas safety regulations.
Obligations between landlords and agents need to be specic in relation to
the gas safety regulations and neither party can seek to evade or exclude
themselves from those obligations. Any clause in the tenancy agreement
which attempts to evade the regulations will be invalid. A breach of the
regulations is a criminal oence, enforced by the Health & Safety Executive.
The Gas Safety (Installation and Use) Regulations 1998 make it mandatory
that gas appliances are maintained in a safe condition at all times.
Landlords are required by the regulations to ensure that all gas appliances
are adequately maintained and that an annual safety check is carried out by
a registered tradesperson.
From March 2009 the Gas Safe Register has replaced CORGI gas registration
in Great Britain and is now the ocial industry stamp for gas safety. For
further information visit www.gassaferegister.co.uk.
All gas installers should carry identication cards which will state the type
of work they are authorised to carry out. For further information about
registered gas installers and to locate a service that is local, see the Gas
Safe Register website at www.gassaferegister.co.uk. Once the inspection
The Responsibilities and Liabilities of the Landlord/Letting agent 33
1 Pre-tenancy
2.7.2 Exceptions to the
Regulations
has been carried out, the installer will provide a gas safety record.
A gas safety record must be provided to tenants of properties which
contain gas appliances when they rst move in, and annually thereafter.
Failure to do this is a criminal oence.
Any necessary repair or remedial work identied should be carried out
straightaway by the landlord who cannot place responsibility for this onto
the tenant. If the need for any work is caused by the tenant’s behaviour,
then the tenant can be charged for the cost of the repair work afterwards.
For further information about responsibilities and obligations, contact the
Health & Safety Executive (HSE) for advice. Additional information and
details of the local HSE oce can be obtained from the HSE website at
www.hse.gov.uk.
It is very important that the gas regulations are complied with and all
necessary repairs carried out as soon as possible. Defective gas appliances
are very dangerous and some tenants have died as a result. Culpable
landlords could be subject to legal action.
A landlord must:
• have gas appliances provided by them checked for safety by a
registered gas installer within 12 months of their installation
and then ensure further checks at least once every 12 months
after that
• ensure a gas safety check has been carried out on each
appliance and ue every 12 months, except where the
appliance was installed less than 12 months ago. Gas pipe
work should also be inspected to ensure it is not leaking. The
registered gas installer must take action to leave the appliance
safe, if it fails a safety check. This could be remedial action,
disconnection and/or a warning notice attached
• give a copy of the gas safety record to any new tenant when
they move in or to an existing tenant(s) within 28 days of the
check
• keep a record of the gas safety check made for each appliance
for two years
• ensure that gas appliances, ttings, and ues are maintained
in a safe condition.
The regulations do not apply to gas appliances which are owned by the
tenant.
The regulations do not apply to leases for terms of more than seven unless
the landlord has a break clause which entitles the landlord to end the lease
during the rst seven years.
The regulations allow a defence for some specied regulations where
a person can show that they took all reasonable steps to prevent the
contravention of the regulations.
Portable or mobile gas appliances supplied from a cylinder must be
included in maintenance and the annual check; however they are excluded
34 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.7.3 Room-sealed Appliances
2.7.4 Indications that an
Appliance is Faulty or
Dangerous
2.7.5 Tenants’ Duties
2.8 Electrical Safety and
Electrical Goods
2.8.1 Landlords’ Duties and
Responsibilities
from other parts of the regulations.
The regulations require that:
• a gas appliance installed in a bathroom or a shower room
must be a room-sealed appliance (i.e. sealed from the room in
which it is located and obtaining the air for combustion from
the open air outside the building, discharging the products of
combustion direct into the open air)
• a gas re, other gas space-heater or a gas water-heater of 14
kilowatt heat output or less in a room used or intended to be
used as sleeping accommodation must either:
- be a room-sealed appliance or
- incorporate a safety control designed to shut down the
appliance before there is a build-up of a dangerous
quantity of the products of combustion in the room
concerned.
Danger signs to look for are:
• stains, soot or discolouring around a gas appliance indicating
that the ue or chimney is blocked, in which case carbon
monoxide can build up in the room
• a yellow or orange ame on a gas re or water heater
• The most eective indication of a combustion problem would
be the activation of a properly installed carbon monoxide
detector.
Tenants also have responsibilities imposed upon them by the Gas Safety
(Installation and Use) Regulations 1998.
They must report any defect that they become aware of and must not use
an appliance that is not safe. Tenants should be informed of this in writing
and a clause explaining their duties should be included in their tenancy
agreement: this would include reporting any defect and not using an
appliance that is not safe.
Again, landlords should have a clear understanding of their responsibilities
in relation to electrical installations and appliances and the duties and
responsibilities placed on a landlord by the following regulations:
• Landlord and Tenant Act 1985
• Consumer Protection Act 1987
• Electrical Equipment (Safety) Regulations 1994
• Building Regulations 2000
Legislation places obligations on landlords to ensure that all electrical
appliances supplied by the landlord are safe at the date of supply.
Landlords need to ensure that the electrical installation and all electrical
appliances are ‘safe’ with little risk of injury or death to humans, or risk
of damage to property. This includes all mains voltage household electric
goods supplied by the landlord such as cookers, kettles, toasters, electric
blankets, washing machines etc. Any equipment supplied must also
be marked with the appropriate CE marking (Conformité Européene /
The Responsibilities and Liabilities of the Landlord/Letting agent 35
1 Pre-tenancy
2.8.2 Building Regulations Part P
Declaration of Conformity).
In order to meet these obligations either supply new appliances or get any
appliances provided checked by a qualied electrician before the property
is let to new tenants. All paperwork regarding the items (i.e. receipts,
warranties, records of inspection) should be kept for a minimum period of
six years.
One way of helping to achieve safety is to undertake a regular formal
inspection of the installation and appliances on an annual basis. The
Electrical Safety Council advises that as a minimum, landlords should:
• check the condition of wiring, and check for badly tted plugs,
cracks and chips in casings, charring, burn marks or any other
obvious fault or damage
• check that the correct type and rating of fuses are installed
• ensure all supplied appliances are checked by a competent
person at suitable periods and that any unsafe items are
removed from the property. Record details of all electrical
appliances, including their condition and fuse rating
• ensure that instruction booklets are available at the property
for all appliances and that any necessary safety warnings are
given to tenants
• avoid purchasing second-hand electrical appliances for rented
properties that may not be safe and
• maintain records of all checks carried out.
Although there is no statutory requirement to have annual safety checks
on electrical installations as there is with gas, the Institution of Electrical
Engineers recommends a formal periodic inspection and test being carried
out on the installation at least once every 10 years or on a change of
tenancy.
There is, however, a statutory requirement that all HMOs (both licensable
and not licensable) must have their mains installation inspected every ve
years.
It may also be appropriate that where any risk is found to be enhanced, for
example where an installation is old or where damage is regularly found, a
more frequent inspection regime will be necessary.
Periodic inspection and testing and any necessary remedial work must only
be undertaken by someone competent to do such work. On completion, a
periodic inspection report, which indicates the installation is satisfactory
(or why it is not), should be issued by the person carrying out the work and
this should be acted upon and retained by the landlord.
The regulations relating to electrical installations fall into two categories:
existing installations and new work.
New Work
The design, installation, inspection and testing of electrical installations is
36 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.8.3 Further Guidance
2.9 Safety of Furniture
2.9.1 The Furniture and
Furnishings (Fire) (Safety)
Regulations 1988
controlled under Part P of the Building Regulations which applies to houses
and ats and includes gardens and outbuildings such as sheds, garages and
greenhouses.
All work that involves adding a new circuit or is to be carried out in
bathrooms and kitchens will need to be either carried out by an installer
registered with a Government-approved competent person scheme or
alternatively notied to building control before the work takes place.
Generally, small jobs such as the provision of a socket outlet or a light
switch on an existing circuit will not be notied to the local authority
building control.
More details can be found in Approved Document P published by the CLG
and in their guidance leaet Rules for Electrical Safety in the Home.
On completion of any new electrical installation work an Electrical
Installation Certicate or Minor Works Form should be issued by the
electrician or installer carrying out the work and this should be retained by
the landlord.
Building regulations are enforced by local authority building control
ocers and they can be consulted for further information about
compliance with these regulations.
For further guidance about electrical safety and the competency of
electricians and installers to carry out new work or undertake the formal
periodic inspection and test of an existing installation, refer to the
information provided on the Electrical Safety Council’s website:
www.esc.org.uk.
If furnished accommodation is being provided it is important to understand
the need to provide safe furniture and furnishings, particularly in relation
to re safety.
Since 1 January 1997 persons who hire out furniture in the course of a
business (and this includes furniture provided with rented accommodation)
are required to comply with the Furniture and Furnishings (Fire) (Safety)
Regulations 1988 which set safety standards for re and ame-retarding
requirements for upholstered furniture manufactured after 1950 or where
the tenancy commenced after March 1993. The regulations relate to:
• furniture meeting a cigarette resistance test
• cover fabric, whether for use in permanent or loose covers,
meeting a match resistance test and
• lling materials for all furniture meeting ignitability tests.
Tenancies that commenced prior to 1993 are exempt, but all additional or
replacement furniture added after 1993 must comply with re resistance
requirements. A new tenant after 1993 means that all relevant furniture
must comply.
The regulations require that:
All new furniture (except mattresses, bed bases, pillows, scatter cushions,
seat pads and loose and stretch covers for furniture) must carry a display
label at the point of sale. This is the retailer’s responsibility.
All new furniture (except mattresses and bed bases) and loose and stretch
covers are required to carry a permanent label providing information
about their re-retardant properties. Such a label will indicate compliance,
The Responsibilities and Liabilities of the Landlord/Letting agent 37
1 Pre-tenancy
2.10 Houses in Multiple
Occupation (HMO)
2.10.1 Denition of an HMO
although lack of one in second-hand furniture would not necessarily imply
non-compliance as the label might have been removed.
Generally, if second-hand furniture has not been bought from a reputable
dealer and is not labelled, then it should be assumed that the furniture will
fail to meet the regulations.
The regulations apply to any of the following that contain upholstery:
• furniture
• beds, headboards of beds, mattresses
• sofas, sofa beds, futons and other convertibles
• scatter cushions and seat pads
• pillows and
• loose and stretch covers for furniture.
The regulations do not apply to:
• sleeping bags
• bedclothes (including duvets)
• loose covers for mattresses
• pillowcases
• curtains
• carpets.
The regulations relate only to items provided by the landlord and do
not apply to items provided by the tenants for which the landlord is not
responsible.
The publication A Guide to the Furniture and Furnishings (Fire) (Safety)
Regulations is available from the Department for Business Enterprise &
Regulatory Reform (BERR) website: www.berr.gov.uk/les/le24685.pdf
Special requirements apply to types of properties known as Houses
in Multiple Occupation (HMOs) which place special responsibilities on
landlords and agents.
An HMO is dened in sections 254-259 of the Housing Act 2004. In simple
terms, an HMO is a building, or part of a building, such as a at, that:
• is occupied by more than one household and where the
occupants share, lack, or must leave their front door to use an
amenity such as a bathroom, toilet or cooking facilities
• is occupied by more than one household in a converted
building where not all the ats are self-contained. ‘Self-
contained’ means that all amenities such as kitchen, bathroom
and WC are behind the entrance door to the at
• is a converted block of self-contained ats, but does not meet
the requirements of the Building Regulations 1991, and less
than two thirds of ats are owner-occupied.
The households must occupy the building as their only or main residence
(remembering that tenants can have more than one main residence)
and rent must be payable in respect of at least one of the household’s
occupation of the property.
38 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.11 Duties on the
Manager of an HMO
Generally a household is a family (including co-habiting and same-sex
couples or other relationship, such as fostering, carers and domestic
sta). The denition of a family also includes parent, grandparent, child,
stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece, cousin and
‘a relationship of the half-blood shall be treated as a relationship of the
whole blood’.
Each unrelated tenant sharing a property will be considered a single
household.
Properties which are shared by two individuals are exempt from the HMO
denition as are those with a resident landlord with no more than two
lodgers.
A self-contained unit is one which has a kitchen (or cooking area), bathroom
and toilet for the exclusive use of the household living in the unit. If
the occupiers needs to leave the unit to gain access to any one of these
amenities then the unit is not self-contained.
The Management of Houses in Multiple Occupation (England) Regulations
2006 and 2007 place specic duties on the manager of an HMO. Failure to
comply with the regulations is a criminal oence, leading to nes of up to
£5,000 on conviction. This section highlights some of the key duties in the
regulations:
Duty to provide information to occupiers
• the name, address and telephone number of the manager
must be provided to each household in the HMO and the same
information must be displayed in a prominent position in the
common parts of the HMO.
Duty to take safety measures
• means of escape from re must be kept free of obstruction
and kept in good order and repair
• re-ghting equipment, emergency lighting and alarms must
be kept in good working order
• all reasonable steps must be taken to protect occupiers from
injury with regard to the design of the HMO, its structural
condition and the total number of occupiers. In particular, any
unsafe roof or balcony must be made safe or all reasonable
measures taken to prevent access to them. Safeguards must
be provided to protect occupiers with windows with sills at or
near oor level
Duty to maintain the water supply and drainage
• these must be maintained in proper working order - namely
in good repair and clean condition. Specically, storage tanks
must be eectively covered to prevent contamination of water,
and pipes should be protected from frost damage.
Duty to supply and maintain gas and electricity
• these should not be unreasonably interrupted by the landlord
The Responsibilities and Liabilities of the Landlord/Letting agent 39
1 Pre-tenancy
2.11.1 Duties of Occupiers of HMOs
or manager
• all xed electrical installations must be inspected and tested
by a qualied engineer at least once every ve years and a
periodic inspection report obtained
• the latest gas safety record and electrical safety test results
must be provided to the council within seven days of the
council making a written request for them.
Duty to maintain common parts, xtures, ttings and appliances
• all common parts must be kept clean, safe, in good decorative
repair and working order and free from obstruction
• in particular, handrails and banisters must be provided and
kept in good order, any stair coverings securely xed, windows
and other means of ventilation kept in good repair and
adequate light ttings available at all times for every occupier
to use
• gardens, yards, outbuildings, boundary walls/fences, gates,
etc., which are part of the HMO should be safe, maintained in
good repair, kept clean and present no danger to occupiers/
visitors
• any part of the HMO which is not in use (including areas giving
access to it) should be kept reasonably clean and free from
refuse and litter.
Duty to maintain living accommodation
• the internal structure, xtures and ttings, including windows
and other means of ventilation, of each room should be kept
clean, in good repair and in working order. Each room and
all supplied furniture should be in a clean condition at the
beginning of the tenant’s occupation.
Duty to provide waste disposal facilities
• no litter should be allowed to accumulate, except for
that stored in bins provided in adequate numbers for the
requirements of the occupiers. Arrangements need to be made
for regular disposal of litter and refuse having regard to the
council’s collection service.
The regulations also place a number of duties upon the occupiers (the
tenants) of an HMO.
These duties include:
• not obstructing the manager in the performance of their
duties
• allowing the manager access to the accommodation at all
reasonable times for the purpose of carrying out their duties
• providing information to the manager which would be
reasonably expected to enable them to carry out their duties
• acting reasonably to avoid causing damage to anything the
40 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.11.2 Duty to carry out a Fire Risk
Assessment
2.11.3 LGA (formerly LACORS)
National Fire Safety
Guidance
2.12 Licensing of Private
Rented Properties
manager is under a duty to supply, maintain or repair
• storing and disposing of litter and refuse as directed
• complying with reasonable instructions of the manager with
regard to any re escape, re prevention measures and re
equipment.
If an occupier breaches their duties under the regulations it is likely to put
their tenancy at risk, and the landlord/manager may be able to take legal
action against the tenant. Tenants can also be prosecuted by the local
authority with a maximum ne of £5,000. The regulations impose duties
on both landlords/managers and tenants, and both can be prosecuted and
ned for breaching them.
The Regulatory Reform (Fire Safety) Order 2005 (known as the FSO)
introduced duties in relation to re safety in the common areas of HMOs,
ats and maisonettes. The duty is placed on the responsible person, who
is required to carry out a re risk assessment and take specic action to
minimise the risk of re in the common parts. ‘Responsible person’ means
‘the person who has control of the premises in connection with the carrying
on of a trade, business or other undertaking’. In practice this will usually be
the landlord, but in the case of absentee landlords where the ‘carrying on
of the business’ is undertaken by a managing agent it may be the managing
agent.
Where a house is let as a shared house on a single tenancy then there are no
‘common parts’ and so a risk assessment is not required under the regulations.
These provisions are enforced by re and rescue authorities and there is
therefore a dual enforcement regime in place in multi-occupancy premises. In
order to avoid duplication and the potential for conict, a Fire Safety Protocol
has been established as a framework for joint working arrangements between
the re and rescue authorities and local authorities.
In July 2008 the Local Authorities Co-ordinator of Regulatory Services
(LACORS) issued national re safety guidance for landlords and local
authorities in England. As Welsh statutory re safety requirements are very
similar, the guidance may also be relevant in Wales.
Compliance with the guidance will satisfy landlords’ legal requirements
under the Fire Safety Order, and is available at: www.lacors.gov.uk/lacors/
NewsArticleDetails.aspx?id=19844 (Seetwothirdsdownthepage‘To
downloadaPDFversion...’)
The guidance explains the general principles of re safety and how to carry
out and record a re safety risk assessment.
Part D of the guidance provides very useful illustrations of the re
precautions that may be suitable for the most common property types.
The illustrations are based on properties being of normal re risk and the
guidance explains the factors that determine normal risk.
In addition to HMOs the guidance includes re safety advice for singly
occupied properties. The Housing Act 2004 requires such properties to be
re safe.
The Housing Act 2004 introduced licensing of private rented premises. It is
compulsory to license larger, higher-risk dwellings, but local authorities are
The Responsibilities and Liabilities of the Landlord/Letting agent 41
1 Pre-tenancy
2.12.1 Purpose of Licensing
2.12.2 Mandatory Licensing of
HMOs
2.12.3 Additional Licensing of
HMOs
2.12.4 Selective Licensing of Other
Residential Accommodation
also able to license other types of rented premises, including other lower-
risk HMOs and individual houses and ats, if they can establish that other
avenues for tackling problems in these properties have been exhausted.
Licensing is intended to make sure that:
1. a landlord is a t and proper person (or employs a manager
who is)
2. each premises is suitable for occupation and
3. the standard of management is adequate.
This is to ensure tenants are protected and that the risk of anti-social
behaviour is reduced. High-risk premises can be identied through
licensing and targeted for improvement by a local authority under the
Housing Health and Safety Rating System (HHSRS).
The landlord of a licensable dwelling must apply to the local authority for a
licence. The local authority can clarify whether a property is licensable.
If the landlord refuses to apply for a licence (or cannot satisfy the ‘t and
proper’ person criterion) and does not use a managing agent, the local
authority must manage the property instead.
More information about mandatory HMO licensing can be found below and
on the CLG website at www.communities.gov.uk.
Mandatory licensing applies if the HMO or any part of it:
• comprises three storeys or more
• is occupied by ve or more persons and
• is occupied by persons from two or more households.
The Housing Act 2004 gives local authorities the discretion to establish
additional HMO licensing schemes, to cover smaller types of HMO where
management problems have been identied.
Before setting up such a scheme, the local authority must follow the legal
process which includes:
• identifying the problems arising from that type of HMO
• considering whether any other course of action to deal with
the problems is available
• ensuring the scheme is consistent with their local housing
strategy
• consulting with those likely to be aected including tenants,
landlords, landlord organisations etc.
A scheme does not come into eect until three months after it is made and
a scheme may last for up to ve years.
Part 3 of the Housing Act 2004 gives local authorities the discretion
to introduce selective licensing schemes to cover all privately rented
property, but not HMOs which are covered by Mandatory and Additional
Licensing, in designated areas which suer, or are likely to suer from,
low housing demand and also those which suer from signicant and
persistent anti-social behaviour. The use of this discretionary power is
subject to local consultation.
Before setting up such a scheme, the local authority must follow the legal
42 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.12.5 Applying for a Licence
2.12.6 Fit and Proper Person Test
2.12.7 Licence Conditions
process which includes:
• identifying the problems arising from that type of HMO
• considering whether any other course of action to deal with
the problems is available
• ensuring the scheme is consistent with their local housing
strategy
• consulting with those likely to be aected including tenants,
landlords, landlord organisations etc.
A scheme does not come into eect until three months after it is made and
may last up to ve years.
Anyone who owns or manages a licensable premises, whether under the
mandatory scheme or an additional or selective scheme, has to apply to the
local authority for a licence.
The local authority must give a licence if it is satised that the:
• HMO is reasonably suitable for occupation by the number of
people allowed under the licence
• the proposed licence holder or the proposed manager (if there
is one) is a t and proper person
• the proposed licence holder is the most appropriate person to
hold the licence
• the proposed management arrangements are satisfactory
• the person involved in the management of an HMO is
competent and the nancial structures for the management
are suitable.
In determining whether the licence applicant is a ‘t and proper person’ the
local authority will take into account a number of factors, including:
• any unspent convictions relating to violence, sexual oences,
drugs and fraud
• whether the person has breached any housing or landlord and
tenant law
• whether they have been found guilty of unlawful
discrimination.
A licence will last for up to ve years and the local authority normally
charges a fee to cover the cost of issuing the licence. In some local
authorities discounts are given if the landlord or property is accredited or if
an application is made with a plan.
The licence will specify the maximum number of people who may live in
the property. The following conditions must apply to every licence:
• a valid current gas safety record, which is renewed annually,
must be provided (for properties that have gas)
• proof that all electrical appliances and furniture are kept in a
safe condition
• proof that all smoke alarms and emergency lights are correctly
positioned and installed
• each occupier must have a written statement of the terms on
which they occupy the property. This may be, but does not
have to be, a tenancy agreement.
The Responsibilities and Liabilities of the Landlord/Letting agent 43
1 Pre-tenancy
2.12.8 Renewing a Licence
2.12.9 Properties where a Licence
may be refused
2.12.10 Temporary Exemption from
Licensing
For a selective licence there is a requirement for references from
prospective occupiers.
The local authority may also apply other conditions of their own which may
include any of the following:
• restrictions or prohibitions on the use of parts of the property
by occupants
• action necessary to deal with the anti-social behaviour of
occupants or visitors
• ensuring the condition of the property and its contents, such
as furniture and all facilities and amenities (e.g. bathroom and
toilets) are in good working order and ensuring that specied
works or repairs are carried out within certain time limits
• for an HMO, a requirement that the responsible person attends
an approved training course in relation to any approved code
of practice.
Many licences, rst issued for ve years, are now coming up for renewal.
There has been no change in primary legislation so a property that is
currently licensed will need its licence renewed in order to operate
legally. If there has been no signicant change in the property, many local
authorities are now asking landlords to renew their initial licence rather
than reapply as if an entirely new licence was required. Contact the local
authority or check on their website which is the easiest way of renewing
the licence. It is important that a renewal is requested before the initial
licence runs out.
If the property is not suitable for the number of occupants, is not properly
managed or the landlord or manager is not a t and proper person, a
licence will not be granted. If a property cannot be granted a licence the
council must make an Interim Management Order (IMO), which will allow
the local authority to manage the property (either directly or indirectly
through a nominated partner).
The IMO can last for a year until suitable permanent management
arrangements can be made. If the IMO expires and there has been no
improvement, then the council can issue a Final Management Order (FMO).
This can last up to ve years and can be renewed.
If the landlord or person in control of the property intends to stop
operating as a licensable property or legally reduce the numbers of
occupants and can provide evidence of this, then they can apply for a
Temporary Exemption Notice (TEN).
This lasts for a maximum of three months and ensures that a property in
the process of being converted from a licensable property does not need to
be licensed. If the situation is not resolved, then the landlord can apply for
a second Temporary Exemption Notice for a further three months.
When this expires the property must be licensed, become subject to an
IMO, or cease to be a licensable property. TENs also apply where the licence
holder dies. The property will be treated as if it is subject to an exemption
notice for three months, during which time the estate can either apply for a
new licence or cease to run the property as a licensable property. If it takes
longer than the initial three months the estate can apply for one further
44 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.12.11 Right of Appeal Against a
Local Authority’s Decision
2.12.12 Oences
2.12.13 Rent Repayment Orders
2.13 Planning Control
exemption notice.
A landlord can appeal to the Residential Property Tribunal Service (RPTS),
normally within 28 days, if the local authority refuses a licence, grants a
licence with conditions or revokes or varies a licence.
More information about the work of the RPTS and the jurisdiction of
residential property tribunals under the Housing Act 2004 can be obtained
from www.justice.gov.uk/tribunals/residential-property
It is a criminal oence if the landlord or the person in control of the
property fails to apply for a licence for a licensable property or allows a
property to be occupied by more people than are permitted under the
licence. A ne of up to £20,000 may be imposed. In addition, breaking any
of the licence conditions can result in nes of up to £5,000. Note also, that
no section 21 notice [see section 5.5.7 for more information about section
21 notices] may be given in relation to a shorthold tenancy of a part of a
licensable HMO so long as it remains unlicensed. This means that where
a licence is compulsory, unlicensed HMO landlords will be unable to evict
their tenants by the notice-only section 21 procedure.
The local authority may apply to the RPTS for a ‘rent repayment order’
allowing it to reclaim any housing benet that has been paid during the
time the property was without a licence up to a maximum of 12 months.
A tenant living in a property may also make an application to claim back
any rent they have paid during the unlicensed period, up to a maximum
of 12 months, if the landlord has been convicted of operating a licensable
HMO without a licence, or has been required by a rent repayment order to
make a payment to the local authority in respect of housing benet on the
property.
For more information about HMO licensing go to: www.communities.gov.
uk/housing/rentingandletting/privaterenting/housesmultiple/
For more information about selective licensing go to: www.communities.
gov.uk/housing/rentingandletting/privaterenting/selectivelicensing/
Planning approval is essentially about controlling the use of land and is
required to alter, extend or change the use of existing properties, or to
make changes to a listed building or to a property in a conservation area.
Planning approval is needed when a previously singly occupied property is
converted into bedsit units or ats.
Approval is not normally required for a property let as a shared HMO for up
to six tenants on a group contract, living together as a single household and
where no signicant changes have been made to the property. For a group
of seven or more the presumption should be made that approval may be
needed and the advice of the local planning authority should be obtained.
In around 25 towns (mainly associated with large numbers of students)
local authorities have obtained what are known as Article 4 powers, which
means that planning permission is required for any new HMOs. HMOs that
existed before these powers came into eect retain their use whilst being
used as HMOs.
In each locality there will be a separate planning policy or guidance
pertinent to a designated area of control. In this case, the guidance of
The Responsibilities and Liabilities of the Landlord/Letting agent 45
1 Pre-tenancy
the planning authority should be sought before undertaking any work to
convert a house to an HMO as permission for this may not be forthcoming.
If an existing HMO is being purchased, the purchasers should ask for
conrmation from the seller (normally in the form of a letter from the
relevant planning authority) that the house has been previously used as an
HMO.
These are comparatively new and evolving powers and there is still
much confusion and uncertainty about the policies being followed. What
happens if a house changes occupancy levels? Is existing HMO usage based
on current or previous occupancy?) What happens if a house is let to a
single household and then reverts back to an HMO?
To obtain planning approval, an application with detailed drawings and
payment of a fee is made to the local planning authority. The authority will
consider the application, may consult with local residents and will then
issue a decision with the reasons for that decision. The approval may have
conditions attached.
An applicant aggrieved by the decision can appeal against it to the Planning
Inspector or may negotiate with the planning authority and amend and re-
submit the application.
Enforcement action can be taken against unapproved developments
requiring the reinstatement of the property back to its original condition.
The interactive site given below provides an illustration of works that
require Planning and Building Regulations approval. www.planningportal.
gov.uk/uploads/hhg/houseguide.html
Unapproved conversions of singly occupied houses to HMOs and ats are
outside the time limits for enforcement action by planning authorities if
established use can be proved for 10 years in the case of bedsit properties,
and four years for buildings in ats.
After the above time periods an application can be made to the planning
authority for a Certicate of Lawful Use (CLU). This means that the use of
the property is lawful despite the use not having planning approval.
New ‘building work’ must comply with Building Regulations and includes:
• installation of a service, e.g. washing or sanitary facilities
• material alterations to the structure
• conversions to ats
• some major repairs.
There are two optional procedures available to carry out works with
Building Regulations approval for which a fee is payable.
1. Full Plans Application
This is the normal procedure for most works, whereby the local authority’s
Building Control Service approves plans and details of the proposed
works as being compliant before works commence. The application can
be approved with or without conditions, or refused or have amendments
2.13.1 Obtaining Planning
Approval
2.13.2 Certicate of Lawful Use
2.14 Building Regulations
Approval
2.14.1 Obtaining Building
Regulations Approval
46 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
requested.
A Commencement Notice is given to the Building Control Inspector when
works start. At pre-determined critical stages the contractor noties the
inspector that certain works are being carried out so that those works can
be inspected to check compliance before being covered over.
A Completion Certicate is issued by the inspector at the end of work
stating that the works have been carried out in compliance with Building
Regulations.
2. Building Notice Procedure
This procedure is suitable for small-scale works that need to progress
quickly and where pre-approval of plans is not essential.
The contractor gives a Building Notice to the Building Control Service that
works are about to start and which will then be inspected as they progress.
The contractor will be advised if any works are not likely to be Building
Regulations compliant so corrective action can be taken.
An alternative to using a local authority building control service is to
use a private sector approved inspector’s building control service.
The procedures are similar with the exception of some additional
administration to keep the local authority, as the statutory enforcement
authority, informed of progress.
‘Unapproved’ building works are liable to enforcement action if discovered
within 12 months of completion.
Further information is available from:
www.direct.gov.uk/en/HomeAndCommunity/Planning/
BuildingRegulations/DG_10014170
Setting up a Tenancy 47
1 Pre-tenancy
3.1 Types of Tenancies
3.1.1 Assured and Assured
Shorthold Tenancies
3.1.2 The Main Dierences
between an Assured and an
Assured Shorthold Tenancy
3.1.3 Choosing an Assured or an
Assured Shorthold Tenancy
A tenancy is a contract on mutually agreed terms between a landlord and a
tenant. Landlords or prospective landlords should understand the various
types of tenancies, which have dierent rights and obligations.
These types of tenancies are governed by the statutory code set up in the
Housing Act 1988, which was amended slightly by the Housing Act 1996.
The vast majority of tenancies today will be assured shorthold tenancies.
Both assured and assured shorthold tenancy can charge a market rent for
the property.
Assured Shorthold Tenancies
Assured shorthold tenancies (ASTs) are now the ‘default’ type of tenancy.
If a property is let, and it does not fall into one of the exceptions outlined
below, it will automatically be an AST. If a property is let without a written
agreement, which is most unwise, then that too will be as AST.
An AST can be for any term (the rule requiring them to be for a minimum
term of six months was abolished by the Housing Act 1996), although in
fact the vast majority of tenancies are for terms of at least six months.
The main benet of ASTs for landlords is that they can recover possession
of the property without needing a reason, provided any xed term has
expired and the proper form of notice has been properly served. The
notice is known as a section 21 notice, as the landlord’s right to recover
possession and the notice procedure is set out in section 21 of the Housing
Act 1988. The notice must be served on the tenant at least two months
before the landlord wants the tenancy to end. To end a xed-term AST, the
section 21 notice must expire on the last day of the xed term. To end a
periodic AST, the section 21 notice must expire on the last day of a period
of the tenancy.
Assured Tenancies
The non-shorthold version of the assured tenancy gives tenants long-term
security of tenure, and tenants are entitled to stay in the property until
either they choose to go, or the landlord can gain possession on one of the
17 grounds listed in Schedule 2 of the Housing Act 1988. Possession under
the ‘no fault’ section 21 procedure is not available for assured tenancies.
Before 28 February 1997 assured tenancies were the ‘default’ type of
tenancy, and some of the assured tenancies in existence today were
created by mistake, through landlords not following the proper procedure
required at that time to create an assured shorthold tenancy. Landlords
should seek advice if they are unsure which type of tenancy applies.
The vast majority of landlords will wish to create an assured shorthold
tenancy. If the property is subject to a mortgage, most mortgage companies
will also insist that all tenancies are assured shorthold tenancies. A
landlord might consider letting a property under an assured (not shorthold)
tenancy, where recovery of possession will not be required, and the
landlord wishes the tenant to have security of tenure (for example a
tenancy agreement with a family member or former employee).
Landlords should proceed with care and seek legal advice before agreeing
an assured tenancy, as it will entail loss of the right to recover possession,
perhaps during the landlord’s lifetime, as these tenancies can be passed on
to spouses.
3. Setting up a Tenancy
48 Setting up a Tenancy
1 Pre-tenancy
3.1.4 Setting up an Assured
Tenancy
3.1.5 Tenancies which cannot
be Assured or Assured
Shorthold Tenancies
3.1.6 Tenancies which can be
Assured, but not Assured
Shorthold, Tenancies
If a landlord wishes to create an assured tenancy, this can be done by
giving notice to the tenant, clearly stating that the tenancy being created
is an assured tenancy rather than an AST. There is no prescribed format
for this. It is best done as part of the tenancy agreement, but can also be a
separate form of notice, served either before or after the tenancy has been
entered into.
In some circumstances the statutory codes set up by the Housing Act
1988 will not apply. The tenancy may be governed by some other Act
of Parliament, or simply be subject to the agreed terms of the contract
(usually called contractual tenancies) and/or the underlying ‘common law’.
Tenancies excluded from being assured or assured shorthold tenancies are:
• where the tenancy began, or which was agreed, before
15 January 1989 (this will normally be governed by the
provisions of the Rent Act 1977)
• where the property is not the only or principal home of the
tenants
• where the rent is more than £100,,000 a year
• where the rent is £250 or less a year (£1,000 or less in Greater
London)
• a company let
• the tenancy has been granted to a full-time student by an
educational body such as a university or college
• a holiday let or
• a letting by a resident landlord (i.e. where the landlord and
tenant live in the same building as originally constructed,
most commonly where landlord and tenant share some part of
the accommodation, this is usually a licence/lodger situation
not a tenancy).
In the circumstances set out above the tenancy will be governed by the
contractual agreement or if there is no agreement, the common law.
Note that the chief signicance of a property not being an assured or an
AST is that the procedures for recovery of possession are dierent.
The following tenancies cannot be assured shorthold tenancies:
• those where there is an existing tenant with an assured
tenancy. An existing assured tenancy cannot be converted
into an AST, for example by issuing a new form of tenancy
agreement. This applies whether or not the xed term in the
tenancy agreement has expired.
• an assured tenancy which the tenant has succeeded to on the
death of the previous regulated (pre-1989) tenant under the
‘succession’ rules
• an assured tenancy following a secure tenancy as a result of
the transfer of the tenancy from a public sector landlord to a
Setting up a Tenancy 49
1 Pre-tenancy
3.1.7 Fixed-term Tenancies
3.1.8 Periodic Tenancies
3.1.9 Initial Period of an Assured
Shorthold Tenancy
private landlord
• an assured tenancy arising automatically when a long
leasehold tenancy expires.
An assured or assured shorthold tenancy may be a xed-term tenancy,
which lasts for a xed number of weeks, months or years. The length of the
xed term will be set out in the tenancy agreement.
Most tenancies have a xed term of either six months or a year, but the
xed term can be of any length although advice should be sought if
agreeing a xed term of more than three years as particular procedures
apply. After a xed term has expired it can be allowed to run on [see
section 3.1.8 below] or a new xed-term agreement can be entered into.
An assured or assured shorthold tenancy may be a periodic tenancy that
runs indenitely from one rent period to the next. (This is sometimes
known as a rolling tenancy). There are two types of periodic tenancy. The
contractual periodic tenancy is one that is periodic because the contract
says it is periodic, typically because the initial letting was set up as a
periodic tenancy. The second type is a statutory periodic tenancy and this
exists because a xed-term tenancy has expired, the tenant has remained
in the property and no new agreement has been set up.
Periodic tenancies can exist either from the start of the tenancy, or after
the xed term in a tenancy expires. The periods of the tenancy are dened
by the rent payment periods. This is the period of time for which the
tenant pays rent, typically a week or a month. If the tenant moves in on the
fteenth of the month and then pays the rent in advance on the fteenth
of each month, the periods will be the fteenth of one month to the
fourteenth of the next month.
It is important when setting up an AST that landlords clearly identify what
dates the rent is payable, and whether rent is payable in advance (the
norm) or in arrears (the exception). This clarity ensures that if a xed-term
AST does roll over into a statutory periodic tenancy, both landlords and
tenants know what the periods of the tenancy are, and can give the correct
periods of notice.
If tenants remain after the xed term they do not become ‘squatters’. They
do not acquire additional rights if they stay as a periodic tenant for a long
time.
An AST tenancy can be set up as a periodic tenancy from the outset, but
more usually the landlord and the tenant will agree an initial xed term.
There is no minimum xed term prescribed by law, but regardless of what
the landlord and tenant agree, assured shorthold tenants have a right to
stay in the premises for a minimum period of six months. Under the section
21 possession procedure, a judge cannot grant an order for possession to
take eect during the rst six months of an AST. This means that even if
a xed term of less than six months or a periodic tenancy is agreed from
the outset, there is not a guaranteed right for the landlord to recover
possession until the initial six months have expired. (If the initial term was
less than six months there is no reason why proceedings for possession
cannot be commenced before the six months is up but the possession order
will not take eect till the end of the six months.)
Possession can also be sought during this initial period, or during a xed
50 Setting up a Tenancy
1 Pre-tenancy
3.1.10 Regulated Tenancies
3.1.11 Licences
3.1.12 Sub-letting/Assigning
Tenancies
term under some of the statutory grounds for possession in Schedule 2
of the Housing Act 1988. The most important of these is for non-payment
of rent, but for more information on this see the separate section on
possession claims [see Chapter 5 on possession].
These rules do not apply to non-Housing Act 1988 tenants (see the list in
section 3.1.5 above).
Non-Housing Act 1988 tenants can be evicted at the end of a xed term, by
serving notice to quit to end a periodic tenancy, or for breach of tenancy
(including non-payment of rent), by applying to the court. Comparatively
few tenancies are non-Housing Act 1988 tenancies and they can only be
created in the special circumstances set out in 3.1.5 above.
Most lettings by private landlords which began before 15 January 1989
are regulated tenancies under the Rent Act 1977 unless the landlord and
tenant live in the same house. Regulated tenants have greater security of
tenure and are subject to rent control.
A tenant whose tenancy is regulated by the Rent Act 1977 is unlikely to
be evicted unless signicant rent arrears have been accumulated or the
landlord is able to provide suitable alternative accommodation. More
information can be found in the leaet Regulated Tenancies available from
the CLG website at www.communities.gov.uk.
A licence is where someone is allowed to occupy property but does not
have a tenancy. The ‘licence’ or permission of the owner prevents the
occupier from being a trespasser. Some of the protective legislation for
occupiers does not apply to licences.
The three main tests for a tenancy are:
1. exclusive possession
2. a xed or periodic term
3. the payment of rent.
If these three factors are present, there will be a tenancy.
If the occupier does not have exclusive possession, i.e. they share, say,
the bedroom, then they will only be a licensee. The essential dierence
between a tenant and a licensee will be having exclusive possession. A
person who has exclusive possession of residential premises for a denite
period is a tenant unless there are exceptional circumstances. The rules
around how much of the property they have to have exclusive occupation
of dier between Housing Act 1988 tenancies and non-Housing Act 1988
tenancies.
Other circumstances where a tenancy will not occur are ‘serviced’
accommodation where the landlord needs to have frequent access for
cleaning and meals are provided, such as in a hotel, and where the occupier
shares living accommodation with the landlord (here the occupier is
normally referred to as a lodger).
A landlord who has taken care to select a tenant by proper referencing
and verication of suitability is unlikely to allow that chosen tenant to
sub-let (assign or transfer the tenancy) to another, without the landlord’s
permission. In the past, tenancy agreements always tended to prohibit sub-
letting or assignment.
Setting up a Tenancy 51
1 Pre-tenancy
3.1.13 Joint and Several Tenancies
Now, standard terms in residential tenancy agreements are subject to the
Unfair Terms in Consumer Contracts Regulations 1999, administered by the
Oce of Fair Trading (OFT). The OFT has issued guidance to the eect that
absolute prohibitions on assignment and sub-letting could be considered
unfair and, therefore, void in terms of the regulations.
Landlords wishing to retain a degree of control over assignment and
sub-letting are advised to ensure that the tenancy agreement allows
assignment or sub-letting only upon landlord’s consent (which cannot,
by law, be unreasonably withheld). Alternatively, the tenancy agreement
should be framed in such a way as to allow the tenant to terminate it easily
if they are unable to recommend to the landlord a suitable person to take
over the tenancy.
Even if the tenancy agreement does not provide for it, it is suggested that
the landlord should always agree to re-let the property to a suitable new
tenant, allowing the original tenant to terminate their agreement early if
they wish. If the prospective new tenant is considered suitable, and there is
only a short period remaining of the original agreement, the landlord might
consider oering a longer term to help prevent a void period.
If the tenancy is a contractual periodic tenancy, or a statutory periodic
tenancy that has arisen at the end of a xed term, the tenant cannot by law
give the tenancy or sub-let to someone else unless the landlord agrees that
he or she can. A periodic tenant can end their tenancy by serving notice to
quit.
If the tenant has paid a premium for the property (a lump sum, possibly
in addition to a small rental payment or a sum paid as a deposit which is
greater than two months rent), the tenant is able to sub-let unless there is a
term in the tenancy agreement preventing this.
Joint tenancies can be agreed with two or more people from the outset
of the tenancy. Each can then be responsible jointly and severally
(individually) for meeting the terms of the tenancy in full, including paying
the rent. This is known as ‘joint and several liability’. Joint and several
liability only arises where it is agreed. If nothing is agreed they will simply
be jointly liable.
For example, if a property is let jointly and severally to four tenants A,
B, C and D for a monthly rent of £400 (with each agreeing to pay £100
each), and C decides to leave, they will all each still remain liable under
the contract for all the rent. So C is still liable for rent even though he
or she may not be living there, and A, B and D will each be liable to the
landlord, for all the rent, including the £100 share from C. This situation
will continue until either vacant possession is given back to the landlord or
a new tenancy is signed, for example with A, B, D and perhaps E.
If one of the joint tenants wishes to vacate, it is best to regularise the
situation as soon as possible by signing a new tenancy agreement with the
remaining and new tenant(s), so long as any replacement tenants can be
referenced satisfactorily. A landlord should not allow the situation to drift.
Instead, a proactive approach should be taken to ensure the remaining
tenants sign a new tenancy agreement. Failure to do so could cause the
landlord diculties in repossessing the property. If the tenants provided a
guarantee with the original tenancy, the landlord should ensure that a new
guarantee is provided with any new tenancy, or that the old guarantee will
52 Setting up a Tenancy
1 Pre-tenancy
3.1.14 Succession Rights and Rights
of Survivorship
3.2 Tenancy Agreements
3.2.1 Written Tenancy Agreements
3.2.2 Benets of Written Tenancy
Agreements
apply to any new tenancy granted to the same tenant.
Technically a tenancy can only be in the names of four tenants, as in land
law only four people can hold a legal interest in land. However, if there are
more than four tenants who wish to share, the additional tenants will still
be liable for the rent and everything else under the contract, and their co-
tenants will be deemed to be holding the tenancy on trust for themselves
and the others. Practically therefore the four-name rule is not a problem.
If a joint tenant dies, the remaining joint tenant(s) are entitled to remain in
the property (having a right of survivorship). They become liable for the
rent.
If a sole tenant dies, the right to succeed to the tenancy will depend on
whether the tenant had a xed-term or periodic tenancy.
For xed-term tenancies where the term has not expired, the position is,
in theory, that the executors will arrange for the tenancy to be passed on
to the person to whom it is left in the will (or whoever inherits it under the
intestacy rules if there is no will). In practice, the executors will usually
agree to surrender the property, and the landlord will agree to seek
another tenant.
If a periodic tenancy, the tenant’s spouse or a person who lived with the
tenant as husband or wife, has an automatic right to succeed to a periodic
assured tenancy unless the tenant who died had already succeeded to the
tenancy. Only one succession is allowed. No one else in the family has an
automatic right to succession (section 17 Housing Act 1988).
In a periodic assured tenancy, if someone is living in the property who
does not have a right to succeed to the tenancy, the landlord can claim
repossession under Ground 7, provided the proceedings for recovery
of possession are commenced within a year of the death of the original
tenant.
In a shorthold tenancy, the landlord is entitled to repossess the property at
the end of any xed term, or at the end of a period of a periodic tenancy,
even if the tenant is entitled to succeed provided that the landlord gives
the proper form of two months’ notice under section 21.
Landlords should be aware of the benets of written tenancy agreements
and the procedures necessary for obtaining such an agreement. Although
many short-term tenancies (three years or less) can be created without
a written agreement, it is generally not advisable for landlords to
allow occupation without rst having secured a signed formal tenancy
agreement.
A written agreement is required by law for xed-term tenancies of greater
than three years, when the tenancy must be produced by deed, with
signatures being witnessed. Even in tenancies of three years or less,
landlords are strongly advised to have a written tenancy agreement, which
the tenants should sign before occupation. The benets of having a written
agreement are:
• it can prevent disputes later over what was agreed
Setting up a Tenancy 53
1 Pre-tenancy
3.2.3 Tenant’s Right to a Written
Statement
3.2.4 Implications of Oral
Agreements
3.2.5 Preparing a Written
Agreement
• if there is a dispute, it can help to resolve the dispute more
quickly
• a well drafted tenancy agreement will help protect the
interests of all parties .
Landlords should note:
• after moving in, occupiers cannot be required to sign a tenancy
agreement
• it will be dicult to evict a tenant without a valid tenancy
agreement
• the accelerated procedure for recovery of possession (see
Chapter 5) will not be available unless the tenancy and
required notices can be evidenced from valid paperwork.
A Housing Act 1988 tenant who does not have a written agreement has a
right to ask for a written statement of any of the following main terms of
the tenancy:
• the date the tenancy began
• the amount of rent payable and the dates on which it should
be paid
• any rent review arrangements
the length of any xed term which has been agreed.
The tenant must apply in writing to the landlord for this statement. The
landlord must provide it within 28 days of receiving the tenant’s written
request. A landlord who fails to provide a statement of tenancy particulars
without reasonable excuse, is committing a criminal oence and could be
prosecuted and ned.
In law, a tenancy can be created by oral agreement. If a person occupies a
property and pays rent, a tenancy will have been created even though there
has been no written agreement.
A landlord cannot allow a tenant to live in a property ‘on approval’, on
the basis that a tenancy will be granted later. The tenancy will have been
created by the initial acts of occupation and payment of rent.
A person exclusively occupying a property and paying rent will legally
be regarded as a tenant and be entitled to all the statutory protections
provided to tenants under the law.
Although landlords may draw up their own agreements, this is not
advisable. Drafting tenancy agreements is a highly skilled job and landlords
doing this without legal advice may nd that they have actually made their
position worse in the very areas where they were seeking to protect their
position.
It is far better to use one of the many excellent standard tenancy
agreements which are available from landlord associations, law stationers,
the larger general stationery stores, the many online services available
for landlords, and some local authority housing advice centres. Landlords
wishing to alter the terms of a standard agreement should seek specialist
advice.
The preparation of a written agreement is the key opportunity for both
landlord and tenant to agree the formal terms of their relationship. Both
54 Setting up a Tenancy
1 Pre-tenancy
3.2.6 Unfair Terms in Tenancy
Agreements
parties should have every opportunity to read and understand the terms of
the tenancy which is being created before becoming bound by them.
Following changes to Stamp Duty in 2004, tenancy agreements no longer
have to be stamped in order to be valid. The new Stamp Duty Land Tax
may still be payable if they are of very high rent value. More details can
be found in the Inland Revenue leaet Stamp Duty on Agreements Securing
Short Tenancies available from any Stamp Oce. The Stamp Oce Helpline
can provide more advice on Stamp Duty on 0845 603 0135 and there are
factsheets available on www.hmrc.gov.uk.
It is best to have two copies of the tenancy agreement signed by both
parties with each keeping their own copy.
If the tenant occupies the property immediately, the agreement does
not need to be witnessed. If the tenant does not intend to occupy until a
later date (for example students signing a tenancy agreement in June and
taking occupation in September) it could be better to have the agreements
formally drawn up and independently witnessed. Landlords should seek
advice on this (particularly if tenancy agreements are being created online)
as the legalities of the situation are complex.
Both parties should be careful when completing the agreements. Make
sure they are legible and that they can be read without diculty in the
event of a dispute. Landlords should provide a full, valid and current
address in England or Wales. This could be the address of the landlord’s
agent or his registered business address. If a landlord does not give an
address, this might cause diculties should any dispute arise.
If no address for the landlord is given at all, apart from being bad practice,
this will cause the landlord diculties later if there is a need to evict a
tenant for arrears of rent.
There are now regulations to ensure that standard contracts between a
consumer and a business are ‘fair’.
These are the Unfair Terms in Consumer Contracts Regulations 1999. It has
been conrmed that they apply to tenancy agreements. The regulations
are administered and enforced by the Oce of Fair Trading (OFT) which has
issued guidance on the eect of the regulations on tenancy agreements.
The regulations do not cover the core terms of a contract (e.g. the rent and
property details) except in so far as they require that the contract must be
in plain English.
A standard term is unfair if it creates a signicant imbalance between the
parties’ rights and obligations to the detriment of the consumer and it is
contrary to the requirement of good faith. If a term is found to be unfair it
will be void and not enforceable – but the rest of the contract will stand.
So far as tenancy agreements are concerned:
• any clauses which attempt to limit or exclude rights (e.g. legal
rights) which tenants would otherwise have had, are likely to
breach the regulations and be deemed unfair, unless there is a
very good reason for them (which should be apparent from the
agreement)
Setting up a Tenancy 55
1 Pre-tenancy
3.2.7 Making an Inventory/
Schedule of Condition
• clauses which impose any penalty or charge on a tenant must
provide for or state that the charge should be both reasonable
in amount and reasonably incurred
• where a clause states that a tenant may only do something
with the landlord’s written consent, this should be followed
by the words ‘(consent not to be unreasonably withheld)’ or
similar.
Any clauses which are dicult to understand, or which use legal
terminology, or words which have a specic legal meaning which may not
be understood by the ordinary person (such as ‘indemnity’ or ‘jointly and
severally liable’), will also be vulnerable to being found invalid under the
regulations.
Here is an example of how this can work
Many landlords would prefer to prohibit pets from their properties and
would like a clause in the agreement saying this. However, if the clause
just says, ‘The tenant is prohibited from keeping any pets whatsoever’, this
clause is likely to be void (ultimately only a court can decide what is or
is not fair), and it will not stop the tenant from keeping pets if it is found
unfair.
To make the clause more acceptable, it should say something like ‘The
tenant is prohibited from keeping pets, save with the landlord’s written
permission which shall not be refused unreasonably’.
A clause in this format is not saying a landlord has to give permission.
There are many excellent reasons for refusing permission for pets - that
they damage the property, that some people are allergic to them, or that
the lease with the freeholder may also prohibit pets. If any of these reasons
were given it would be dicult for the tenant to argue that the landlord
was being unreasonable in refusing permission for a pet. The same words
may be a fair term or an unfair term, depending on the context in which
they are used.
It is easy to breach the regulations and render clauses invalid by inexpert
adaptations. Professionally drafted tenancy agreements sold by reputable
publishers and associations will normally have been drafted with these
regulations in mind. Note also, that from time to time new cases may be
decided or new guidance issued by the OFT which will need to be reected
in the form of tenancy agreements.
Make sure that the agreements in use are the most recent versions and do
not use old versions. [See Oce of Fair Trading’s website for Guidance on
Unfair Terms in Tenancy Agreements: www.oft.gov.uk.]
Having an inventory (sometimes also called a statement of condition) is
essential if the property is let furnished, and a very good idea even if it
is unfurnished. An accurate and current inventory will help to protect the
position of both parties and can provide evidence to prove the condition of
the property at the time it was let.
Care should be taken when preparing an inventory. Make a detailed list
of all the belongings and furniture provided when a tenant rst moves in.
It is also essential to record the condition of such things as walls, doors,
windows, and carpets etc. The inventory should be agreed with the tenant
56 Setting up a Tenancy
1 Pre-tenancy
3.3 Deposits and Tenancy
Deposit Schemes
3.3.1 Requiring a Deposit
before they move in and a separate copy of the list held by each party.
This should then be checked again at the time the tenant moves out. The
inventory will only provide protection if it is agreed by both parties and
if it is thorough and detailed. If the inventory simply records ‘four chairs’,
that says nothing about whether they match, or about their quality or
condition. The condition of the furniture, including existing damage to the
furniture and ttings, decorations and other contents should be noted on
the inventory and agreed with the tenant.
Photographs are often a good idea, particularly with high value furnishings.
The use of digital photographs is not always accepted by the courts as
evidence so it is advisable to print the photographs and for both the
landlord and tenant to sign and date the photographs as an accurate image.
With some properties, landlords and agents are now also taking videos but
this has more limited value in dispute resolution as they are much harder
to work with.
A thorough and detailed inventory will help avoid disputes, particularly
those involving the return of a deposit. It is advisable to keep all receipts
and to make a record of the meter readings in the inventory. Remember
that if there is a dispute over the condition of the property and this goes to
court or a deposit scheme adjudicator, it will generally be for the landlord
to prove the claim.
Taking an inventory is a long job and many landlords now use professional
inventory clerks to do this for them. The advantage of this is that, if a
dispute over the condition of the property ever happens, they will be able
to give independent evidence to the judge. If a dispute about the condition
of a property goes to court or to a deposit scheme adjudicator, generally it
will be for the landlord to prove the claim that the deposit (or part of the
deposit) should be withheld.
Inventory clerks can be found via the website of the Association of
Independent Inventory Clerks at www.theaiic.co.uk.
Many landlords take a deposit from tenants to hold for the duration of the
tenancy. When the tenant moves out this is returned to the tenant less
any deductions permitted: normally for damage (in excess of fair wear
and tear), additional cleaning and to cover any outstanding rent. Note that
a deposit (or part of it) can only be withheld if it is stipulated within the
contract what the deposit is being held against.
Because a small minority of landlords wrongly withheld or did not return
deposits the Government introduced in the Housing Act 2004 a statutory
deposit protection scheme. This safeguards all deposits taken under
an assured shorthold tenancy after 6 April 2007 or assured shorthold
tenancies that have been renewed since that date. Deposits relating to
other types of tenancies are not covered.
A landlord may require a deposit from a tenant before they move into the
property. Landlords often feel that holding a deposit means a tenant is less
likely to abandon a property and instead terminate the tenancy correctly. A
deposit can also act as an incentive to ensure that the property is properly
cleaned and cleared at the end of the tenancy. Deposits can also help to
protect landlords against any unpaid rent at the end of the tenancy.
The amount of the deposit to be levied is part of negotiating a contract
or agreement with the tenant. The amount of the deposit can vary
signicantly and depends on how much ‘risk’ the landlord perceives they
Setting up a Tenancy 57
1 Pre-tenancy
3.3.2 Withholding Part of the
Deposit
3.3.3 Protecting a Deposit
are taking by letting the property to that tenant. Large deposits, however,
can deter prospective tenants and there is considerable judgement to be
exercised in setting a market-friendly, but practical, deposit level.
Deposits can cover:
• damaged items
• outstanding debts attached to the property
• failure of the tenant to carry out obligations set out in the
tenancy agreement such as cleaning
• non-payment of rent
• other breaches of the tenancy.
In assessing any damage, allowance must be made for fair wear and tear,
the cost of which is not deductible from the deposit. Fair wear and tear is
paid for in the rent charged. Wear and tear arises from normal living in a
property. Landlords should not expect to receive a property back in the
same condition it was let at the start of the tenancy. Tenants should be
expected to return the property in a clean and tidy condition. But after, say,
a tenancy of two years’ normal living, a landlord will just have to accept
that paintwork might be looking tired and carpets might be looking worn.
The tenancy agreement should state clearly the circumstances under which
part or all of the deposit may be withheld at the end of the tenancy.
If the tenant cannot aord the deposit, the local authority’s housing
department or housing advice centre may operate a rent or deposit
guarantee scheme in the area, which would guarantee rent or the costs of
damage for a specied period.
At the end of the tenancy the inventory should be checked and an
assessment made of the condition of the property - the landlord should
take into account reasonable wear and tear.
If a claim is going to be made from the deposit the landlord should account
for this with invoices or receipts and try to reach agreement with the tenant
about the proposed deposit deductions. The landlord should promptly
send any unclaimed balance of the deposit to the tenant. The landlord
should not keep the full deposit as a way of getting the tenant to agree to
deductions about part of the deposit.
The Housing Act 2004 introduced specic requirements that aect AST
deposits taken after 6 April 2007. The requirements are likely to apply
where a deposit was held before that date if a renewal tenancy agreement
is given to the tenant after 7 April 2007. As originally enacted, the
Housing Act 2004 set out the following requirements:
• a deposit must be dealt with in accordance with an authorised
tenancy deposit protection scheme from the moment of
receipt
• landlords must comply with their chosen scheme’s initial
requirements within 14 days of receiving the deposit
• landlords must give prescribed information to the tenant, and
to anyone who paid the deposit on the tenant’s behalf, within
14 days of receiving the deposit.
58 Setting up a Tenancy
1 Pre-tenancy
Section 184 of the Localism Act 2011 (which came in to force on 6
April 2012) extends the 14-day time limits for initial requirements and
prescribed information to 30 days. Although the Localism Act means
more time to comply, it also means less opportunity for retrospective
compliance. Tenants can claim compensation if the deadlines are missed.
The Localism Act also makes it clear that tenants (or someone who paid
the deposit on the tenant’s behalf) can still take a landlord to court after
the tenancy has ended, if the landlord failed to protect a deposit or give
prescribed information within the 30-day deadline.
If the court is satised that an AST deposit was not protected, the Housing
Act 2004 directs the judge either (a) to order the landlord to refund the
deposit; or (b) to protect the deposit in the custodial scheme (see below).
In addition, as originally enacted, the Housing Act directed judges to
award tenants three times the amount of the deposit in compensation.
The Localism Act 2011 gives judges discretion to award tenants minimum
compensation of an amount equal to the deposit, and maximum
compensation of an amount equal to three times the deposit.
Landlords are not allowed to seek possession under section 21 Housing Act
1988 (the assured shorthold, no fault ground) if the deposit has not been
protected. If protection is late then section one can only be served if the
deposit has been refunded or the tenant has taken court action.
The schemes are of two types:
• custodial (where the scheme administrators hold the deposit
and which is free of charge) or
• insurance (where the landlord holds the deposit but has to pay
an insurance premium).
At the time this handbook was published, three schemes are authorised by
under the Housing Act 2004 (see 3.3.4 below).
The custodial scheme is open to all landlords and letting agents and is
free to use. The landlord or agent must pay the deposit to the scheme
administrator within 30 days of receipt. The scheme is funded from
the interest the scheme operator makes on the deposits they hold. This
scheme tends to be used mainly by smaller landlords. Only landlords
who are resident and companies which are registered abroad can use this
scheme.
Landlords and/or agents pay a fee to join insurance schemes. Insurance
schemes operate on the basis that the deposit continues to be held by
the landlord or agent during the tenancy. If there is a dispute about
the deposit at the end of the tenancy, the deposit-holder must pay the
disputed amount to the scheme. The scheme will make an award either
based on the decision of the scheme’s adjudicator, or an order by the
court, or if the parties are subsequently able to reach agreement. The
deposit money is insured, so that if the landlord or the agent does not pay
the correct amount to the scheme when requested, the scheme can claim
on the insurance and pay the tenant’s award, and then try to recover the
tenant’s award from the landlord or agent. If there is no dispute about
the proposed deductions from the deposit, tenants can often receive their
deposits (or the balance due to the tenant) more quickly under these
schemes because the landlord/agent can simply pay it back (rather than
wait for the custodial scheme to refund the money).
Setting up a Tenancy 59
1 Pre-tenancy
3.3.4 Authorised Tenancy Deposit
Protection Scheme Providers
3.3.5 Relevant Person
It is for the landlord to decide under which scheme the deposit will be
held, either the custodial or an insurance-based scheme. The prescribed
information that landlords are required to give to tenants, not less than 30
days after the taking of the deposit, includes giving the tenant (and anyone
who paid the deposit on the tenant’s behalf) details of the scheme under
which the deposit will be held.
To avoid disputes about deposits having to go to court, all the schemes
have an alternative dispute resolution (ADR) service which seeks to resolve
disputes that have arisen about deposits. Use of a deposit protection
scheme’s ADR service is not compulsory. Both landlords and tenants still
have the option of going to court but they cannot do both. In some cases,
landlords who took their case to court were ordered by the judge to use the
ADR service. There is a general obligation in the Civil Procedure Rules (the
court rules) to try other means of resolving disputes before going to court
– because court proceedings are often time-consuming and expensive all
round.
There are three authorised schemes:
The custodial scheme is run by the Deposit Protection Service (further
details from www.depositprotection.com)
There are two insurance-based schemes. The larger of these is run by the
Dispute Service (further details from www.thedisputeservice.co.uk) and
the other scheme, trading as Mydeposits, is a partnership between the
National Landlords Association and Hamilton Fraser Insurance (further
details from www.mydeposits.co.uk)
The scheme run by the Dispute Service is aimed principally at agents and
now only accepts members of specied professional bodies. Mydeposits is
aimed principally at private landlords.
Dierent membership options are now available through the schemes. For
example, managing agents may pay a membership fee which then covers
that agent for all deposits they receive. Alternatively a landlord with only
one or two properties who does not use an agent may be able to pay a at
fee per deposit, and this may be more cost-eective.
Landlords or their agents should familiarise themselves with the rules of
their chosen scheme. The rules may direct landlords and agents to include
special clauses in their standard tenancy agreements, for example. If
tenancy agreements or other documents are not in the form required by
the scheme, or if timescales are ignored, the adjudicator may award the
full deposit to the tenant by default – whatever the merits of the landlord’s
claim.
The prescribed information which landlords or agents must give to tenants
includes information about the chosen deposit protection scheme.
Where a third party provides the deposit, i.e. money changes hands as
opposed to the guarantee schemes listed below, then under the Housing
Act 2004 that person is a ‘Relevant Person’ and needs to be provided with a
copy of the prescribed information. This is very common in student letting
where parents often provide the deposit and some local authorities will
provide a physical monetary deposit rather than a guarantee. The Relevant
Person should also be provided with a copy of the tenancy agreement, as it
could help to avoid or resolve disputes later if they are told up front what
60 Setting up a Tenancy
1 Pre-tenancy
3.3.6 Lead Tenant
3.4 Bond Guarantee
Schemes
3.5 Rent Setting
the deposit might be used for. Just like tenants, Relevant Persons can claim
against landlords or agents if they are not given prescribed information or
if the landlord/agent fails to comply with the chosen deposit protection
scheme’s initial requirements.
The custodial scheme (DPS) and the Mydeposits insured scheme both use
a ‘Lead Tenant’ system. This applies in any situation where more than one
person has an interest in the deposit. This could be where there are joint
tenants, parents of students or local authorities providing the deposit. In
setting up the Lead Tenant all parties with an interest in the deposit need
to agree who that will be and then only that person will have authority to
deal with the deposit at the end of the tenancy. This may cause problems
with students signing a joint tenancy trying to get six parents who have
not met to agree which of them will be the only one with the right to argue
about this at the move-out, or if they choose a Lead Tenant who leaves the
property before the end of the tenancy.
If a local authority had provided the deposit, the Lead Tenant may not be a
tenant at all but the local authority which paid a deposit on behalf of the
tenant.
Landlords should be aware of the operation of bond guarantee schemes
and their benets.
There are various bond guarantee schemes operating across the country.
These schemes generally replace the upfront cash deposit and instead
guarantee to the landlord the cost of any damage to the property/rent
arrears etc. If at the end of the tenancy the landlord nds that they need to
make a claim they would do so via the bond bank. These types of scheme
are generally only available to certain ‘vulnerable’ groups.
For landlords the schemes can:
• provide a guarantee against damage or rent arrears
• provide assistance in getting housing benet processed
quickly
• help nd tenants in certain circumstances
• oer general advice on landlord and tenant matters.
The types of services oered may vary across the country and the local
authority should have details of schemes operating within the locality.
Dealing appropriately with vulnerable groups can be challenging and
rewarding. It is suggested that landlords wishing to deal with these
groups should ensure they have the required condence, skills and
professionalism to do so.
Landlord and tenant should mutually agree the initial rent. During the
rst six months of a tenancy, tenants have rights to refer the rent to the
rent assessment committee for review [see Appendix 3 - Rent assessment
committees] if they consider the rent to be above the market rent. This is,
however, very rarely done.
The rent charged may include a sum to cover the cost of repairs, although
these costs cannot be passed on to the tenant in the form of a separate
service charge. In particular, a landlord cannot seek to pass on to the
tenant the cost of any repairs which are their responsibility under section
11 of the Landlord and Tenant Act 1985 or under the regulations relating to
Setting up a Tenancy 61
1 Pre-tenancy
3.5.1 Setting the Rent
3.5.2 Rent Book
3.6 Raising the Rent
gas safety or similar.
Before the tenancy begins, landlord and tenant should mutually agree the
rent, including arrangements for when to pay and review it. The details of
these matters should be included clearly in the tenancy agreement.
If the tenancy is for a xed term, the rent given in the agreement will last
for the whole of the xed term unless there is a rent review clause.
A landlord is legally obliged to provide a rent book if the rent is payable
on a weekly basis (failure to do so is a criminal oence.). The rent book
provided must, by law, contain certain information. Standard rent books
for assured and assured shorthold tenancies can be obtained from
law stationers and larger general stationers. However, the landlord
should also keep a record of rent payments and provide receipts for
rent paid (particularly for cash payments) for all tenancies to avoid any
disagreements later.
There are three ways to review the rent in an assured shorthold tenancy.:
1. by way of a rent review clause in the tenancy agreement or
2. by agreement with the tenant or
3. by notice under section 13 of the Housing Act 1988.
Rent review clauses in the tenancy agreement
Normally, it is not possible to review the rent during the xed term
of the tenancy unless either there is a valid rent review clause, or the
tenant agrees to the review. If the tenant agrees, this should be recorded
(perhaps by seeking the tenant’s signature on a new tenancy agreement).
A clause can also be included to review the rent after the xed term has
ended. The clause must comply with the provisions of the Unfair Terms in
Consumer Contracts Regulations and be fair. Clauses allowing the landlord
to review (and particularly to increase) the rent as he sees t are likely
to be unenforceable. Any increase upon a valid rent review is more likely
to be enforceable if it can be justied by a recognised/established factor
(such as signicant improvements to the property or general cost increases
reected in the Retail Prices Index).
Clauses which provide for very large increases will normally be void.
(for example where the rent increase is not to achieve a fair rent for the
property but to increase the rent to a level where it would jeopardise the
security of the tenant or by causing rent arrears or articially raising it over
£100,000). A rent review clause could also be challenged by referring it to
the rent assessment committee.
Rent increase by agreement
It is also possible to review the rent by seeking the tenant’s signature to
a document (such as a copy letter to the tenant proposing the new rent)
which conrms agreement. Landlords wishing to do this are encouraged to
speak to the tenant rst to gauge whether or not they are content with the
proposed new rent.
Once agreement has been reached, the landlord should send a formal
duplicate letter proposing the new rent and asking the tenant to sign, date
and return one copy to conrm their agreement. If the tenant fails to return
the letter or fails to pay the new rent, then the rent will not have been
validly reviewed. The review will be less susceptible to challenge if the
62 Setting up a Tenancy
1 Pre-tenancy
3.6.1 Rent Act (Regulated)
Tenancies
landlord gives the tenant something in exchange for any increase in rent –
for instance allowing the tenant to stay longer than would otherwise be the
case, or improving the facilities or condition of the property. If this is to be
the case, it should be recorded in a letter from the landlord to the tenant.
It is not possible to increase the rent unilaterally by simply sending a letter
to the tenant telling them that their rent will be increased from a specic
date. If the tenant agrees to this and starts paying the rent the increase
is agreed but if the tenant does not agree they can to refuse to pay the
increase.
Rent increase by notice under section 13 of the Housing Act 1988
If the tenancy is an assured or assured shorthold tenancy the landlord can
use a formal procedure in section 13 of the Housing Act 1988 to propose a
rent increase. To do this a special form is needed, which is obtainable from
law stationers, some landlord associations, and some of the online services
for landlords on the internet.
The form must be completed in full, and served on the tenant. At least one
month’s notice must be given to the tenant. If the tenant does nothing
during this period, then the rent increase will take eect.
It should be noted that the rent can only be increased by section 13 after
the xed term has ended, and that this facility can only be used once every
12 months.
If the tenant feels the rent increase is too high then they can refer it to
the rent assessment committee for review. The application must be made
no later than the last day of the notice period or it will be invalid and
the increased rent will stand. If the rent is challenged the matter will be
considered by the rent assessment committee who, if they consider the
rent is not a market rent, will substitute what they consider is a market
rent. The rent assessment committee’s view is not always in the tenant’s
favour and it is not unknown for them to consider that the proposed rent
may be too low.
Regulated tenancies are tenancies governed by the provisions of the Rent
Act 1977. They will all have been created prior to 15 January 1989.
The Rent Act provides for the tenant (or the landlord) to apply to have a
‘fair rent’ registered for the property and once this has been done the fair
rent is the only rent the landlord can charge.
These are rents xed by the local oce of the Rent Service. The Rent
Service does not take account of the impact of scarcity on the market value
of rented accommodation. Contact details for the local Rent Service can be
obtained from the council’s housing advice service.
If a fair rent has been registered, a new registration cannot be made less
than two years after the date the existing registration came into eect
unless:
• landlord and tenant apply jointly or
• there has been a change of circumstances, for example, major
repairs, improvements or changes in the terms of the tenancy.
It is in the landlord’s interest to apply promptly for rent increases every
Setting up a Tenancy 63
1 Pre-tenancy
3.7 Housing Benet
3.7.1 Tenants have to provide
Information and Proof of:
3.7.2 Conditions for Rent
Allowance and Local
Housing Allowance
two years otherwise the rent charged might fall behind market rents
because the amount of increase is capped under a complicated calculation
set out under regulations - The Rent Acts (Maximum Fair Rent) Order 1999.
In the unlikely event that the rent has not already been registered a
landlord can increase the rent if the tenancy agreement or contract allows
for rent increases. If the agreement does not allow for increases in rent it
can only be increased if:
• the landlord and tenant make a formal rent agreement which
must follow special rules or
• the Rent Ocer registers a fair rent.
There are currently two systems of housing benet in use. The old system,
called Rent Allowance (RA), is being phased out and all new claims are now
called Local Housing Allowance (LHA). Existing claims for RA will continue
for the foreseeable future until there is a break in the claim. Many of the
rules are similar but there are dierences.
Also LHA entitlement is based on household size but makes no
consideration of the value of a given property (removing the previous need
for the Rent Service to visit the property to make a valuation). Where this
manual talks about RA it refers only to the old system, where the manual
refers to LHA it refers only to the new system and where the manual refers
to housing benet it generally refers to both systems.
Housing benet is for people on low incomes, including unemployed
people, who have to pay rent. The tenant has to complete an application
form which can be done manually or online either through the local
authority website or at Jobcentre Plus. Applications can also be made by
telephone to Jobcentre Plus.
• their income, and any savings
• their identity and sometimes details of their immigration
status in the UK
• the rent to be paid (usually a written tenancy agreement is
sucient) and
• the name and address of the landlord/agent.
Most local authorities aim to process housing benet claims within 14 days
from receipt of all the appropriate documentation they have requested.
They cannot pay a claim until they have all the information they need.
Regrettably, some local authorities fall short of the 14-day target,
which can cause hardship and problems for both tenants and landlords.
Sometimes delays occur if a tenant does not fully understand what is
required. Some landlords are willing to help tenants with their applications,
whilst others might form a view about a tenant’s suitability if they are
applying for housing benet.
As housing benet is means-tested, (dependent upon income and savings)
some tenants may have to pay part of the rent themselves.
Some tenants, such as most full-time students, some people only allowed
to stay temporarily in the country, or people who have just arrived, will not
be eligible to receive housing benet. Usually housing benet cannot be
paid for a tenant who is a close relative of the landlord: the arrangement
must be that of a genuine arms-length commercial transaction.
64 Setting up a Tenancy
1 Pre-tenancy
3.7.3 Setting the Rent
3.7.4 April 2011 Changes
When someone makes a claim for housing benet the maximum they will
receive is the Local Housing Allowance rate applicable to the size of their
household within a particular locality or Broad Rental Market Area (BRMA).
There are over 150 BRMAs covering England and local authorities will have
one or more BRMAs within their boundaries.
LHA rates within BRMA’s are set by the Valuation Oce Agency’s Rent
Ocers who collect monthly market evidence of private sector lettings
within every BRMA in order to set LHA rates which are updated and
published monthly. You can nd the LHA rates for your property at: www.
direct.gov.uk/en/Diol1/DoItOnline/DG_196239 or they are usually
published on your local authority’s website.
When the new system was introduced, the LHA rate was set at the median
level or ftieth percentile. This meant that in theory 50% of the properties
within a given BRMA would be aordable to people claiming LHA.
The maximum LHA that someone is allowed to claim is dependent on the
size of their household. This is worked out as follows:
Claimants are entitled to one bedroom for:
• every adult couple
• any other adult aged 16 or over
• any two children of the same sex under 16
• any two children under 10 regardless of sex
• any other child
(This would be the maximum LHA that a claimant could receive. What a
claimant will eventually receive when their claim is assessed is dependent
on their household income).
Another feature of the new system was that if the contractual rent was
more than the LHA in the BRMA for the size of property to which the tenant
was entitled, then they were allowed to keep the surplus (capped to a
maximum of £15 per week). This potentially allowed a tenant to keep just
over £60 per month if they chose to rent a low-cost property.
Finally, there are dierent rules for single tenants aged under 25. Housing
benet will only pay an amount based on the average rent for a room in
a shared house, even if the tenant is living in a self-contained at (this is
called the single room rent). This does not apply to couples under 25 or
families.
In any event, the agreed contractual rent is the rent due from the tenant,
and any shortfall in housing benet payments should also be collected. If
there is likely to be a shortfall, it is advisable to check the tenant’s ability
to pay it before letting the property. Enforcing the terms of a contract is
likely to be a fruitless endeavour where the tenant has no money.
There are a number of changes to the LHA system that have been
implemented since it was introduced for all new housing benet claims
nationwide in April 2008.
At that time the maximum number of bedrooms that a claimant and their
family was entitled to claim for was six. From April 2009 this was reduced
to ve.
Setting up a Tenancy 65
1 Pre-tenancy
In their emergency budget of June 2010 the coalition Government
introduced a number of measures aimed at reducing the housing benet
bill. The majority of these would be implemented for all new claims made
from April 2011 and included:
• removal of the ve-bed LHA rate – the maximum LHA that a
claimant and family could claim for would be that for a four-
bedroom property
• the introduction of maximum LHA Caps -
- £250 is the maximum LHA someone can claim for a one-
bed property
- £290 is the maximum LHA someone can claim for a two-
bed property
- £340 is the maximum LHA someone can claim for a three-
bed property
- £400 is the maximum LHA someone can claim for a four-
bed property
• removal of the up-to-£15 excess payable to those claimants
whose rent was lower than their LHA rate
• from April 2011 the LHA rate would be set at a level covering
the bottom 30% of the local private rented market (previously
the LHA rate was set at the 50% level meaning that half of the
properties in the local private rented sector should in theory
be aordable to those claiming LHA. From April 2012 only the
bottom 30% of the market will be aordable to those claiming
housing benet).
In order to try and prevent these changes aecting everyone claiming LHA
simultaneously, the Government has provided transitional protection from
the changes for up to nine months. In practice this means that the changes
may not aect a person’s claim until nine months from the ‘anniversary
date’ of their claim (LHA claims are reviewed annually at which time the
current LHA rate will be applied to the claim).
For example if someone claimed LHA in December 2010, their anniversary
date would be December 2011. At this point they would be entitled to the
LHA rate set at the bottom 30% of the market. However, the transitional
protection arrangements mean that they could continue to receive the LHA
rate they were previously receiving for up to a further nine months until
September 2012 when they would then go onto the 30% rate.
The same protection applies to those whose current rent is higher than the
relevant capped rate of LHA.
For example, someone who claimed LHA in December 2010 at a rate of
£320 per week for a two-bedroom property will continue to receive this
until their anniversary date of December 2011. They will then be eligible
for transitional protection for up to a further nine months when their LHA
will be reduced to the capped rate for this type of property of £290 per
week.
The purpose of the transitional protection is to allow LHA claimants, whose
LHA will be reduced, to try and negotiate with their landlord to reduce their
rent to the new LHA rate or, if this is not possible, to try to seek alternative
66 Setting up a Tenancy
1 Pre-tenancy
3.7.5 Extension of the ‘Shared
Accommodation’ LHA rate
3.7.6 Non-dependants
3.7.7 Revised Guidance on Direct
Payment of LHA to Landlords
accommodation.
Claimants who were receiving the up-to-£15 per week excess as their LHA
rate was higher than their rent prior to April 2011 will continue to receive
this until the anniversary date of their claim when they will move to the
normal LHA rate. There is no transitional protection for this.
The Government also announced that they would be extending the ‘shared
room rate’ entitlement from single claimants under 25 to those under 35
from 1 January 2012.
This means that from 1 Jan 2012 single people under 35 who make
a new claim will only be entitled to the LHA rate for a room in shared
accommodation.
For claimants who claimed prior to April 2011, who will still be under 35 at
1 Jan 2012, the change will take eect from the anniversary date of their
claim although they will be eligible for up to nine months’ transitional
protection.
For example if the claim was made in February 2011, the anniversary
date will be February 2012 when the claimant would then move from the
one-bedroom self-contained LHA rate to the shared accommodation rate.
However the claimant would be eligible for up to nine months transitional
protection and therefore they could remain on the one-bed self-contained
LHA rate till November 2012.
The council may reduce someone’s Local Housing Allowance if they share
their home with adults who are not dependent on them – for example,
adult sons or daughters, parents, relatives or friends. It is assumed that
they should pay something towards the rent, whether they do so or not.
The rate of these deductions depends on the income of the individual in
question. These rates did not change for a number of years. However, from
April 2011 they were increased signicantly and will continue to increase
each April thereafter.
You can nd out more about non-dependant deductions and how much
they are from your local authority website.
The Department of Work & Pensions (DWP) issued revised guidance around
the issue of direct payments of LHA to landlords. As mentioned previously,
in general a person’s LHA can only be paid to their landlord if the claimant
is regarded as ‘vulnerable’ or if the claimant is in rent arrears of eight
weeks.
From April 2011 the DWP have widened the discretion that local
authorities have when considering whether to pay a claimant’s LHA to their
landlord particularly where, ‘they consider that it will assist the customer
in securing or retaining a tenancy’.
For example a local authority may agree to pay an existing claimant’s LHA
direct to their landlord if the landlord agrees to reduce the rent to the
new lower LHA level. In the case of a new tenant the local authority may
consider paying the LHA direct to the landlord if the landlord has reduced
the rent to the prevailing LHA rate.
Setting up a Tenancy 67
1 Pre-tenancy
3.7.8 Rent Allowance
3.9 Tenant References
3.10 Unlawful Discrimination
If the rent covers the cost of gas and electricity, Rent Allowance will be
reduced so that the tenant must pay for these items. This also applies to
water rates and any meals or other services the landlord may provide.
For Rent Allowance only, accommodation in the private rented sector
where the tenant applies for Rent Allowance is valued by the Rent Service.
If the rent is more than the Local Reference Rent (average) for similar size
accommodation in the locality, Rent Allowance will not extend to the full
rent. If the accommodation is larger than the tenant needs, for example if a
couple rent a two-bedroom at, Rent Allowance will also not extend to the
full rent.
If a prospective tenant intends to claim Rent Allowance, the landlord or
the tenant can check whether the rent will be regarded as reasonable
before any agreement is signed. Both need to complete a Pre-Tenancy
Determination application form and send it or take it to the Housing
Benet Oce covering the area in which the property is located. They will
forward it to the Rent Service which will then value the property and send
its decision to the landlord, the tenant and to the council. The target for a
decision is seven working days.
Landlords should interview prospective tenants carefully, so as to assist in
choosing one who will be trustworthy and reliable. Taking up references
from a prospective tenant’s current or previous landlord, employer and
bank can help to inform the tenant selection process.
Some landlords might also use a tenant referencing service, which will
make checks and enquiries of a prospective tenant on a landlord’s behalf.
Many companies provide services such as this. They can be found online or
via insurers or landlord associations.
As part of the pre-tenancy referencing/checks, it is suggested landlords ask
the successful tenant to provide details of a close family member or friend
who can be contacted in an emergency or if the tenant leaves without
notice.
Many agents, and some landlords, ask tenants to pay the fee for using the
referencing service. If this is the case, it should be made clear to the tenant
that the fee will be non-refundable once the landlord has paid it to the
referencing service. Many referencing services turn applications round in
three days or so.
In some niche markets, such as letting to students, it is dicult to obtain
references because this will be the rst time that a tenant has lived away
from home. To oset this risk, some landlords ask for guarantors where a
parent or friend guarantees to meet the cost of unpaid rent and/or damage
up to a given threshold if this is not met by the tenant.
There are legal obligations on landlords both in the public and private
sectors as service providers and employers, to take reasonable steps to
ensure that people are not discriminated against directly or indirectly
due to their race, colour, gender or disability. The specic legislation is as
follows:
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Equalities Act 2010
68 Setting up a Tenancy
1 Pre-tenancy
Direct discrimination is dened as treating a person less favourably than
another on the grounds of their race, gender or disability. In some cases,
discrimination may occur where there has been a failure to comply with a
statutory duty. In relation to disability, it should be noted that the statutory
denition has been widened to include those with certain long-term
medical conditions.
Indirect discrimination consists of applying a requirement or condition
that, although applied equally to persons whether male or female, black or
white, is such that a considerably smaller proportion of a particular racial or
gender group can comply with it than others, and it cannot be shown to be
‘justiable’.
With regard to issues pertaining to disability, a similar requirement
exists that landlords do not impose criteria that could be identied as
‘unreasonable’.
The Equality and Human Rights Commission published a code of practice
on racial equality in housing. The code is important because it is a statutory
code, which has been approved by Parliament. This means that the courts
will take into account the code’s recommendations in legal cases. The code
is in two main parts; the rst explains what landlords need to know about
discrimination; the second makes recommendations about how landlords
can avoid being discriminatory.
To nd out more about discrimination and guidance on avoiding
discrimination go to: www.equalityhumanrights.com.
The landlord should note that tenants should not be chosen on the basis
of race, religion, marital status, disability or sexuality. If the landlord
discriminates against any tenant on these grounds, the landlord could be
prosecuted. If the landlord is letting rooms in the landlord’s home, the
landlord may specify the sex of prospective tenants. Age discrimination
is prohibited in employment but is allowed in housing. In some cases,
housing might have to be let to those over 55 in order to comply with
planning requirements.
During the Tenancy 69
1 Pre-tenancy
4.1 Periodic and Other
Visits
In managing a house, and providing a service to the tenant in exchange for
rent, the landlord should make every eort to establish a good working
relationship with the tenant. This is particularly important when dealing
with access to the property or when undertaking repairs. Part of that
relationship will be good communication with the tenant and ensuring
that their expectations are both reasonable and accurate about the level of
service that will be delivered.
Landlords have a common law obligation to maintain a let property
reasonably free from disrepair. The local authority may take enforcement
action if they identify risks including, but not limited to, items of repair
under the Housing Health and Safety Rating System (HHSRS) under Part 1
of the Housing Act 2004. Letting/renting a house in multiple occupation
(HMO) adds specic management obligations for landlords and occupiers.
These obligations are detailed in Chapter 2 of this manual.
The landlord, or some responsible person acting on the landlord’s behalf,
should visit the house regularly. Visits can also be carried out at any other
reasonable time if the tenant reports a problem. This is both to identify
and to prioritise repairs and other works which may need doing and to
ascertain whether the tenancy conditions are being met. It is good practice
to visit at least quarterly. As conditions within residential premises are now
risk- assessed under the HHSRS the person undertaking the visits should
also be looking out for hazards.
Some visits will need to be undertaken by a qualied and competent
person, for example, a suitably qualied gas engineer for annual gas safety
checks or a competent electrician for periodic re alarm checks.
Tenants must have a means of contacting the landlord or letting agent at
all times and there must be a procedure in place to deal adequately with
emergencies. Any works, however identied, need to be resolved within a
reasonable time period depending on their seriousness.
It is good practice to keep a record of all visits and/or referrals from the
tenant, including the proposed solution and outcome. Some landlords
have a standard checklist, which provides a useful prompt of things to look
for and a record of what was found. Some landlords give a copy to their
tenants.
Receipts should be kept when repairs are undertaken, for which the cost
may be recovered through any of the tenancy deposit schemes and for tax
purposes.
It is important to note that, unless the tenant agrees otherwise, a landlord
must give adequate, at least 24 hours’ written notice of any visit and
its purpose. Some landlords include a note saying they will change the
appointment to a mutually convenient date if requested and that unless
the tenant objects they will let themselves in to conduct the inspection.
If this procedure is used it should be incorporated into any tenancy
agreement.
• Visits must not be intrusive. If they were, this could constitute
harassment. Any terms in the tenancy agreement regarding
access must be reasonable
• These conditions apply only to areas where the tenant
or tenants (in the case of a joint tenancy) have exclusive
possession. Landlords can access communal areas which
4. During the Tenancy
70 During the Tenancy
1 Pre-tenancy
4.2 Tenant Obligations
4.3 Entry and Refusal
4.4 Emergencies
4.5 Changing the Terms
of an Assured or an
Assured Shorthold
Tenancy and Tenancy
Renewal
remain under their control at all reasonable hours. It is
normally courteous to give tenants notice of any works in
these communal areas that may cause them inconvenience.
Landlords may impose reasonable obligations on the tenant which aect
their behaviour (including anti-social behaviour), and that of their visitors,
through the tenancy agreement.
In addition, occupiers of HMOs have specied legal obligations under the
regulations referred to above.
Tenants have a right to quiet enjoyment of their accommodation.
Even if the landlord gives proper notice of a visit, the tenant may still
legally refuse access. If a tenant refuses access the landlord should try and
nd out why before resorting to legal action. It may simply be the timing of
the appointment and the fact that the tenant is unable to get time o work
- in which case an evening or weekend appointment could be arranged.
Only if the tenant will not make alternative arrangements or where
the tenant persistently causes delays and in so doing compromises the
landlord’s ability to full their legal obligations should the landlord
consider terminating the tenancy using the prescribed legal process or
seeking a court order to secure access.
There are times when the property may have to be entered as a matter of
urgency. Statutory bodies are able to do this in appropriate circumstances:
• gas: contact the National Grid emergency number 0800 111 999
• water: sewer and/or ooding: contact the utility company
responsible for water in the area if closing the stopcock is
ineective
• suspicious circumstances relating to criminal activity: liaise
with the police.
Landlords who enter without the consent of the tenant or against their
wishes must be able to demonstrate, if challenged, that it was reasonable
to enter under the circumstances.
If the tenancy is a xed-term contractual periodic tenancy or an assured
shorthold tenancy, the landlord can only change the terms of the tenancy,
within the contractual period of the tenancy if the tenant agrees. It is best
to agree any changes in writing.
Normally any changes are made by getting the tenant to sign a new
tenancy agreement, incorporating the new terms and conditions.
If the tenancy is an assured shorthold tenancy, and the tenant refuses to
co-operate there is the option of serving a section 21 notice [see Chapter
5] and ending the tenancy at the end of its initial term. New terms can then
be written into any new AST.
After the xed term of a tenancy has ended, assured and assured shorthold
tenancies will automatically run on as a statutory periodic tenancy, on
the same terms and conditions as the preceding xed-term tenancy. The
‘period’ will normally be either weekly or monthly depending on how rent
is paid.
During the Tenancy 71
1 Pre-tenancy
4.6 When and if the Tenant
can leave during the
Tenancy
4.7 Preventing, Controlling
and Recovering Rent
Arrears
There is also a procedure whereby the landlord or the tenant can propose
new terms, including a new rent. This can be done, within a year of the
statutory periodic tenancy starting, using a special procedure under the
Housing Act 1988. There is a special form, called a section 6 notice, which
needs to be used, and which has to be served on the tenant. This procedure
may include a change in rent (up or down) but should not be used simply to
change the rent alone (for rent-only changes, see section 13 Housing Act at
section 3.6 above). Landlords can obtain the forms from law stationers and
from some of the online services for landlords.
Although rarely exercised, the landlord and the tenant both have the right
to apply for an independent decision by a rent assessment committee if
the new rent cannot be agreed.
A tenant in a xed-term tenancy can only end the tenancy before the end
of the term with the landlord’s agreement (accepting the tenant’s oer to
‘surrender’ the tenancy), or if this is allowed for by a ‘break clause’ in the
tenancy agreement.
Where a ‘break clause’ exists the tenant must follow any requirements
for giving notice specied in the tenancy agreement. Break clauses are
comparatively rare.
If the agreement does not allow the tenant to end the tenancy early and
the landlord does not agree that the tenant can surrender the agreement,
the tenant will be contractually obliged to pay the landlord the rent for the
entire length of the xed term.
If the tenant wishes to surrender the property (end the letting before
the end of the agreement), the landlord should try to mitigate their loss
(future rent) by re-letting the property. Quite often a landlord will reach an
agreement with the tenant to accept their surrender if they nd a suitable
replacement tenant, which will ensure that the landlord suers no loss of
income.
Reasonable re-letting costs can be charged, but these and any other
conditions attached to the landlord’s agreement to accept the surrender
should be recorded in writing before the surrender takes place. Once a
new tenant is found, the landlord cannot re-let without rst accepting the
surrender of the rst tenancy and so there must be no ‘double charging’ of
rent for the same period.
If the tenancy has no xed term, the tenant must give the landlord notice in
writing of their intention to leave. The tenant must give at least four weeks’
notice where rent is paid on a weekly basis and at least a month’s notice
where rent is paid on a monthly basis. Periodic notices should end at the
end of a rent period for both landlords and tenants.
Proper and reasonable enquires before letting will reduce the risk of
arrears [see Chapter 3].
It is the tenant’s responsibility to make sure rent is paid in full, on time and
in the manner agreed in the tenancy agreement.
Although it is not the landlord’s responsibility to issue reminders or chase
payments, eective procedures for managing arrears should be established
because late payment is not unusual.
72 During the Tenancy
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4.8 Nuisance and Anti-
social Behaviour
Landlords letting to a tenant who claims housing benet as a means of
helping them pay their rent should make themselves familiar with the
housing benet system and particularly the new system of Local Housing
Allowance and its eects on new tenancies. Arrears can occur where a
landlord and/or tenant fails to complete paperwork properly and on time
and claims may then not be back-dated.
In times of hardship, tenants not initially claiming benets may need to
resort to housing benet (HB) to help pay their rent. The landlord should
be sensitive to such situations and oer support to the tenant to help them
submit a valid HB claim. Help may also need to be given to vulnerable
tenants who lack the ability to submit a claim unaided. Oering productive
support can help to reduce arrears, even though this is not a legal
requirement.
Arrears can occur for a variety of reasons and sometimes this can be
resolved between the landlord and their tenant. If the tenant is unable
or unwilling to pay, or is habitually late in paying, then the landlord may
terminate the tenancy using the most appropriate legal method for that
particular type of tenancy. These methods are dealt with in Chapter 5 of
this manual.
Unless trained and skilled in the procedures to terminate a tenancy
early legal assistance should be sought. Failure to follow procedures
properly may mean any action will fail in court and it is important not
to inadvertently harass or illegally evict the tenant as both are criminal
oences.
Section 8 of the Housing Act 1988 can be used to recover possession and
claim arrears owed. In general, if landlords make an error, the courts will be
entitled to reject the application and sometimes the court does not have to
agree with a landlord’s request to terminate a tenancy, even if they agree
the facts claimed are true.
Arrears may also be recovered through the County Court including the ‘small
claims’ procedure and the court will be able to give details on how to do
this. Further information is available from www.hmcourts-service.gov.uk.
A County Court Judgment (CCJ) can aect a tenant’s credit rating which in
turn can aect their ability to rent in the future and can act as a deterrent
to running up arrears. Obtaining a CCJ against a tenant does not mean that
the landlord will automatically receive what is owed. If the tenant does not
pay, the judgement (or order) can be enforced but this will involve further
costs.
In incurring any court or enforcement costs landlords need to consider
how likely they are to be able to recover any monies owed. Bailis cannot
take possession of a tenant’s belongings if they are on hire purchase, so a
tenant’s apparent lifestyle may not be a true reection of their ability to
pay. As an alternative to using bailis, the judgment can be enforced by
means of an attachment of earnings order where the tenant is employed, or
by a third-party payment order where someone else who owes the tenant
money pays it to the landlord instead. A CCJ can also be used to recover
money from a bank account when it is in credit.
Anti-social behaviour (ASB) is any behaviour which causes or is likely to
cause harassment, alarm or distress to one or more persons not of the
same household. Examples include, but are not limited to, noise, violence,
During the Tenancy 73
1 Pre-tenancy
abuse, threats and use of the property for illegal drugs. Adequate checks
prior to letting should minimise the risk of letting to someone who is
likely to behave anti-socially and the tenancy agreement should include
appropriate clauses about anti-social behaviour. Some local authorities
include a licence condition for premises which require a licence under the
Housing Act 2004, stating that landlords must take reasonable action to
prevent and, where necessary, to remedy anti-social behaviour.
Tenants may be the perpetrator or the victim.
In all cases there is a risk of repercussions and landlords should consider
their actions carefully and take advice before acting. Sometimes the police
or the local authority may contact the landlord if there is a problem in one
of their properties and it is important to try to work with them to resolve
the situation.
A range of measures can be used including mediation, Closure Orders,
Anti-social Behaviour Orders (ASBOs) and/or eviction, depending on
the circumstances and seriousness of the situation. Some councils oer
mediation services but all parties have to agree to co-operate for it to work
and it tends not to be appropriate in all cases, particularly in circumstances
involving drugs or violence.
In cases of noise from the property contact the Environmental Health
Department as they may be able to take enforcement action against the
perpetrator including prosecution and seizing equipment.
If a landlord is aware of or suspects violence or drug-related activity, seek
advice from the local anti-social behaviour team/co-ordinator or the police
before acting. They may be able to assist by taking action themselves, for
example by making an Anti-Social Behaviour Order on an individual or a
Closure Order on the premises where anti-social behaviour is associated
with Class A drugs. The latter does not terminate the tenancy but it can last
for three to six months, giving an opportunity to terminate the tenancy and
stop the perpetrator moving back in. If a tenant is at fault, and it is safe to
do so, landlords may wish to discuss the situation with them or write to
them.
If evidence of the anti-social behaviour is needed, the police or the anti-
social behaviour co-ordinator may be able to help.
74 Ending a Tenancy
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5.1 Practical Tips For a
Pain-free End of
Tenancy Handover
This section covers what happens when an assured or an assured shorthold
tenancy ends, how the landlord or a tenant can terminate such a tenancy
and how to gain lawful possession of the premises. There are some
tenancies that are neither assured nor assured shorthold tenancies (for
example holiday lets, tenancies where the annual rent is over £100,000, or
student tenancies in university accommodation). These are a minority and
are dealt with briey at the end of this chapter.
Ending a Rent Act tenancy is a complicated matter, and specialist legal
advice should be taken before making any decision or taking any action.
Bringing a Rent Act tenancy to an end and evicting the tenant can be a very
complex process, and is beyond the scope of this manual. If an application
fails or is struck out, the court may order a landlord to pay the tenant’s
legal costs in addition to their own. Some guidance is given at the end of
this chapter, which, however, is mainly concerned with assured and assured
shorthold tenancies, governed by the Housing Act 1988.
For Housing Act 1988 tenancies, i.e. most tenancies in the private rented
sector, there are dierent methods of bringing possession proceedings
depending on whether the contract is an assured or an assured shorthold
tenancy. Every case is unique and the following can therefore only be a
rough guide.
The information in this chapter about terminating tenancies and eviction
is, inevitably, legalistic, but it is worth emphasising that at the end of
their agreements most tenants leave their property voluntarily and many
landlords experience no problems either moving into a new agreement or
getting possession of their property back. This chapter deals with:
• practical tips for a pain-free handover at the end of the
tenancy
• what to do at the end of a tenancy if landlord and tenant want
it to continue
• what landlords can do if the tenant wants to leave
• what landlords can do if they want the tenant to leave
• procedures when applying to the court for possession
• applying to the court for arrears of rent.
The golden rule is: be prepared. If the tenancy is for a xed term, make a
diary note straightaway of when the tenancy is due to end, and another
date around two months before that. Where appropriate, contact the
tenant to see whether they would be interested in renewing their tenancy,
or whether they plan to leave. If the tenant is going to leave, there are a
number of practical matters that the landlord can help trigger which make
for a smooth ending to a tenancy:
• arranging a joint inspection of the property to agree on any
damage that needs rectifying or decoration that might need
undertaking. Landlords should take a checklist with them
• providing information about the cleaning required to return
the property in an acceptable condition (it is often worth
reminding the tenant of their obligations)
• advising the tenant about taking nal utility readings and
liaising with suppliers about issuing and paying nal bills
• making arrangements for the handover of any keys.
5. Ending a Tenancy
Ending a Tenancy 75
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5.2 What to do if the
Tenancy is to continue
5.2.1 Agreeing a Replacement
Fixed-term AST
The more attention that is paid to ending the tenancy in an orderly manner
the less likely it is that there will be any problems or misunderstanding
about how the tenancy can best come to an end. It is usually a good idea
to conrm anything that is agreed with the tenant in writing. Follow up any
problems as quickly as possible – and record them in writing.
If the tenant does not hand the property back in the condition required
by the tenancy agreement, the landlord may be entitled to make a charge
against the deposit. Chapter 3 of this manual deals with returning tenants’
deposits and claiming deductions. The adjudication services operated by
the tenancy deposit protection schemes rely heavily on comparisons of
check-in and check-out reports, so the better the quality of any check-
in and check-out reports, the more likely it is that the proposed deposit
deduction will be awarded to the landlord. Make sure that all photographs
are clearly labelled and dated.
If the accounts for gas, electricity, water and telephone are in the name
of the tenant, then the payment of these bills is a matter between the
tenant and the supplier, and the supplier cannot require the landlord to
pay. When the tenant moves in the landlord should notify all the suppliers
of the name of the new tenant and the date when the tenancy started.
Some tenancy agreements state that tenants must not change the utility
suppliers during the tenancy (this is a potentially unfair term); other
tenancy agreements state that tenants must notify the landlord of the new
supplier and the account number if they change utility provider. Landlords
can then contact the utility provider easily at the end of the tenancy.
Landlords need to pay the bills for any services used during a void period.
As there are so many dierent suppliers, it is helpful to notify the new
tenant of the name of the existing suppliers if known.
If the gas or electricity company is trying to charge the landlord when they
have been notied of the name of the new consumer (tenant), information
about how to proceed can be obtained from www.consumerfocus.org.uk
which also gives information on how to make an energy-related complaint.
Landlords can also call Consumer Direct on 0845 04 05 06 for consumer
advice.
A periodic tenancy will continue until either the landlord or the tenant
brings it to an end – usually by serving notice to quit.
A xed-term assured tenancy (i.e. non-shorthold) will continue after its
expiry date, and the landlord can only bring it to an end on certain grounds.
Most tenancies in the private rented sector start life as xed-term assured
shorthold tenancies. When the xed term of an assured shorthold tenancy
ends the landlord has the following options if they want the tenancy to
continue:
• to agree a replacement xed-term shorthold tenancy with the
tenant
• to agree to a replacement assured shorthold tenancy on a
periodic basis called a contractual periodic tenancy or
• to do nothing and allow the assured shorthold tenancy to run
on with the same terms, under a statutory periodic tenancy.
This is not something that the landlord has to do but a replacement xed-
term tenancy is advantageous for landlords who want to know that the
tenant’s obligations are going to continue for at least the duration of the
76 Ending a Tenancy
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5.2.2 Agreeing a Contractual
Periodic AST
5.2.3 Statutory Periodic Tenancy
5.3 What to do if the
Tenant wants to leave
5.3.1 Tenant Termination of a
Periodic Tenancy
5.3.2 Tenant Termination of a
Fixed-term Tenancy when it
expires
5.3.3 Tenant Termination of
a Fixed-term Tenancy before
it expires
replacement tenancy.
Check whether the tenancy deposit protection scheme being used requires
re-registration of the deposit if the tenancy is renewed, because the
scheme requirements vary.
This is not compulsory either but it can be a good option for landlords who
need to be exible about when they can have their property back. Landlord
and tenant can agree that the tenancy agreement will terminate by either
of them giving notice to quit. Take advice about the tenancy agreement
and the legal requirements of a notice to quit, if there are any doubts about
this. Again, check whether the chosen tenancy deposit protection scheme
requires re-registration of the deposit.
If the landlord does nothing and the tenant stays on in the property, the
tenancy will automatically run on from one rent period to the next on the
same terms as the preceding xed-term assured shorthold tenancy. This
is called a statutory periodic tenancy. The tenancy will continue to run
on this basis until a new xed-term or periodic tenancy is agreed or the
tenant leaves or the court awards the landlord possession. The terms of the
existing tenancy agreement remain in force; a notice to gain possession of
the premises can be served at any time. The period of notice is linked to
the period for which rent was last payable under the tenancy. Take advice if
there are doubts about which notice to serve.
A periodic tenant must provide notice in writing of their intention to leave.
The minimum notice period is four weeks (specied in section 5 of the
Protection from Eviction Act 1977). In most cases, the contract will specify
at least a month for a monthly rental and that notice should always expire
at the end of a rental payment period. The contract may also specify the
terms on which notice may be given. If the terms are standard terms, they
will only be enforceable if they are fair.
In practice, tenants tend to ignore notice requirements and will leave
when convenient to them. It is often not worth the landlord’s time or
cost in attempting to chase the tenants to enforce those requirements.
Concentrate on getting the property re-let.
There is no statutory requirement for a tenant to serve notice to end a
xed-term tenancy at the end of that xed term. The tenant is generally
entitled to leave without giving any notice. Any standard clause in the
tenancy agreement requiring the tenant to give formal notice to leave at
the end of the xed term (and making the tenant liable for rent in lieu of
notice if they fail to do this) may contravene the Unfair Terms in Consumer
Contract Regulations 1999 and could be unenforceable. Only a court can
decide if any given clause is fair or not. A clause asking the tenant to inform
the landlord whether or not they will be leaving, so that arrangements can
be made for the property to be checked and the damage deposit returned
to them should not cause problems.
If the tenant has a xed-term tenancy but wants to terminate it before the
term expires, they can only do so legally:
• with the agreement of the landlord or
Ending a Tenancy 77
1 Pre-tenancy
5.4 What Landlords can
do if they want a
Tenant to leave
• if early termination is allowed for by a break clause in
the tenancy agreement and the tenant has followed any
requirements for giving notice specied in the tenancy
agreement or
• in a few rare cases, if the landlord is in very serious breach of
his obligations (but the breach must be ‘fundamental’ to the
tenancy).
If the agreement does not allow the tenant to terminate early and the
landlord has not agreed that he or she can break the agreement, the tenant
will be contractually obliged to pay the rent for the entire length of the
xed term. If the landlord accepts the return of the tenancy, it is possible
that the tenancy comes to an end due to ‘surrender by operation of law’.
This occurs where the landlord and the tenant behave in a way that is
inconsistent with the continuation of the tenancy. If the tenant oers to
hand back the keys, make sure that at that stage any conditions connected
with that return are agreed, and record them in writing. For example, are
the keys only being accepted on the basis that the tenancy continues
until a new tenant signs up at the same or a higher rent? Once a landlord
accepts a surrender of the tenancy, the tenant’s liability for future rent
ends unless it has been agreed otherwise. Unlike a claim for compensation
for damage, the landlord is not under a duty to mitigate his or her loss if
the tenant is liable for rent. Payment of rent is a debt, and the rent is due
for as long as the tenancy continues. However, once the tenancy comes to
an end (e.g. if the landlord agrees to accept the property back) the tenant’s
liability to continue paying rent stops (but they remain liable for any
arrears that accrued up to that point).
If a tenant wants to end their xed-term tenancy early, landlords should
explain to tenants that the xed-term tenancy requires the tenant to pay
rent for the duration of the agreement. Some tenants will wish to change
their plans at that point and stay at the property until a new tenant is
found.
Landlords may then agree with the tenant that both of them will try to nd
a new tenant. Landlords should ask the tenant to agree to pay reasonable
additional costs arising from the tenant’s proposed departure, such
as re-letting fees. Landlords should also inform tenants that any early
termination of the tenancy is conditional on the property being handed
back in good order, with rent paid up to the date when the new tenancy
starts. Write to the tenant setting out the conditions and ask them to write
back conrming acceptance of the conditions. In the meantime, to avoid
any inference of a surrender occurring ‘by operation of law’, do not do
anything that would be ‘inconsistent with the continuance of the tenancy’.
Do not treat the tenancy as over until the new tenancy starts.
Once a new tenant is found, there should be no ‘double charging’ for
the same period. If an agreement is not reached, a tenant may decide to
abandon a property and a landlord will have to decide if it is feasible to
take any enforcement action against the tenant. This would be by way of a
small claim in the County Court.
A tenancy of someone’s home, starting on or after 28 February 1997, will in
most cases be an assured shorthold tenancy. Take advice at an early stage
if there are any doubts about what type of tenancy is being terminated.
The procedures for ending a tenancy are dierent, depending on the type
of tenancy.
78 Ending a Tenancy
1 Pre-tenancy
5.4.1 At the End of a Fixed-term
Assured Shorthold Tenancy
In most cases, the procedure will involve serving some kind of notice.
The type and format of notice may vary depending on the circumstances
of the case. Information about specic notices is given below, but as an
introduction here are some general points about service of notice:
• The tenancy agreement may specify the method and manner
by which notices may be served and if the landlord does
not follow the required method, the landlord’s claim for
possession could be struck out by the court. Any specied
method in the agreement should therefore be followed
• In the absence of a specied method of service, service by
hand, preferably with a witness, should be followed and
this should be backed up by an alternative method. The
alternative could be by post, with either a certicate of posting
or recorded delivery. At the time of making the application
to court a landlord will be required to supply the court with
information about the service of the notice
• If the notice is in the wrong form, or incorrectly served, it could
mean that the landlord will lose the case. Take advice if unsure
what to do.
At the end of a xed-term AST, if the landlord does nothing and the tenant
stays on in the property, the tenancy will automatically run on from one
rent period to the next on the same terms as the preceding xed-term
assured shorthold tenancy. This is called a statutory periodic tenancy. The
tenancy will continue to run on this basis until a new xed-term or periodic
tenancy is agreed or the tenant leaves or the court awards the landlord
possession. Some landlords think that if assured or assured shorthold
tenants stay on after the end of the xed term they are unauthorised
‘squatters’. This is not the case, the tenancy continues by operation of law,
and they are still tenants and are legally entitled to be there.
If the landlord does not want the tenancy to continue as a statutory
periodic tenancy the landlord will need to serve a section 21 notice to
bring the tenancy to an end. The notice is known as a section 21 notice, as
the landlord’s right to recover possession and the notice procedure is set
out in section 21 of the Housing Act 1988. The notice must be served on
the tenant at least two months before the landlord wants the tenancy to
end.
The section 21 procedure is considered to be a no-fault procedure as
it is not necessary for the landlord to establish that there has been any
wrongdoing by the tenant. The landlord only has to prove that the tenancy
is an assured shorthold, that the appropriate notice has been validly served
and that either six months, or the xed period, has expired, whichever is
the longer.
Notices to end an AST, if served during the xed term, do not need to be on
a prescribed form and may be issued by letter providing that they comply
with the following rules;
• the duration of the notice must be at least two months and
• the notice must not expire earlier than the xed term of the
agreement (it may expire on any given date after the end of
Ending a Tenancy 79
1 Pre-tenancy
the term).
If a landlord is likely to require the property to be returned to them
immediately after the xed term expires, the section 21 notice can be
served at the beginning of the tenancy provided that the notice expires on
or after the tenancy has come to an end.
The requirements for an order for possession under section 21 are:
• that the tenancy is an assured shorthold tenancy
• that any xed term of the tenancy has expired
• that a notice properly drafted in accordance with the
provisions of section 21 has been served on the tenant and
has expired
• that any deposit paid was duly protected under the
appropriate regulations for tenancies created on or after 6
April 2007
• that any licence required under the Housing Act 2004 (for
example a mandatory House of Multiple Occupation licence)
has been applied for.
If it is necessary to regain possession of the property quickly, it may
be possible to use the accelerated possession procedure. If the above
requirements are met, and the section 21 notice and tenancy agreement
are available in writing, the accelerated possession procedure may be used.
Otherwise, the standard procedure must be followed, which will involve
a court hearing. The accelerated possession procedure may take up to six
to eight weeks after submitting the application to court, depending on
the case load of the court at the time. Details of the process are set out in
section 5.8 of this manual.
The court cannot grant an order for possession during the rst six
months of the tenancy using the section 21 procedure. It follows that the
accelerated possession procedure cannot be used during that time either.
For example, if a tenancy has been granted to a new tenant for a period of
two months from 1 January and is issued a section 21 notice on the second
day of the tenancy, it is possible to issue proceedings for possession
shortly after the xed term has expired, i.e. in early March. However, when
making the order for possession the judge cannot order that possession be
given any earlier than 1 July. Realistically, this is not normally a problem
as by the time the court papers have been drafted and issued and gone
through the court system, the six-month period will be nearing its end
anyway.
This six-month ‘moratorium’ only counts from the rst tenancy agreement
with that particular tenant for a particular property, not any subsequent
agreements. But if a tenant is renting a room in a shared house and moves
to another room, this will count as a new tenancy and the six-month
moratorium will apply, even though he or she may have lived in another
room in the house for some time.
It is not uncommon for landlords to think that they cannot issue an assured
shorthold tenancy for less than six months. This is not true, it is just that,
it is not possible to get a Court to order repossession during the rst six
80 Ending a Tenancy
1 Pre-tenancy
5.4.2 At the End of a Fixed-term
Assured Tenancy
5.4.3 To end a Periodic Tenancy
5.4.4 To end a Fixed-term Tenancy
before it is due to expire
months of the tenancy.
The section 21 procedure does not apply, and the landlord can only bring
the tenancy to an end on certain grounds. Most landlords will need to take
legal advice before proceeding.
Most landlords will need to take legal advice if the tenancy is an assured
periodic tenancy.
If the tenancy is a contractual periodic assured shorthold tenancy, the
landlord should follow any notice stipulations set out in the tenancy
agreement. The landlord may need to take legal advice before proceeding.
In the majority of cases in the private rented sector, a periodic tenancy will
be a ‘statutory periodic tenancy’, i.e. an assured shorthold tenancy that has
run on past its expiry date. In these cases, notices must be given in writing
and must:
• state that possession is required under section 21 of the
Housing Act 1988
• have a notice period of at least two months and
• expire on the last day of a period of the tenancy.
For example, if the rent period is from the eleventh of the month to the
tenth of the next month, the end of tenancy date in the notice must be
the tenth of the month. If the tenancy is paid weekly the proper notice
periods end in the same way at the end of a period for which rent is paid.
For example, if the rent is paid every Monday for the period through to the
following Sunday, the notice must expire on a Sunday.
Periodic notices may also contain a ‘savings clause’, referring to the last
day of a period of the tenancy as well as, or instead of, a specic date. Such
a clause may correct an incorrectly dated notice, provided that the savings
clause is clear and precise. A savings clause cannot, however, correct all
faults in the notice.
There will be cases when a landlord has agreed a xed term, but needs to
end the tenancy early. This might be because of a change in the landlord’s
circumstances, or because things are not working out with the tenant.
If a landlord wishes to obtain possession of the property during the xed
term of an assured or assured shorthold tenancy, they can only seek
possession:
• if one of the grounds for possession in Schedule 2 of the
Housing Act 1988 (as amended) applies (see below), and
• if the tenancy agreement has a clause in it providing for this
(this is sometimes known as a re-entry or forfeiture clause,
even though forfeiture cannot be used for assured/assured
shorthold tenancies) or
• by activating a properly drafted break clause and then using
the section 21 procedure (assured shorthold tenancies only).
For break clauses, to be valid they must be available for use by both the
landlord and the tenant, not just the landlord alone.
Ending a Tenancy 81
1 Pre-tenancy
Although a landlord can re-take possession if it is obvious that the tenant
has abandoned the property, in most cases the landlord will need to obtain
an order from the court. Evicting a tenant without a court order is a criminal
oence (with very few exceptions).
The grounds for possession are divided into mandatory grounds (upon
which the court must order possession if the landlord proves the
allegation) and discretionary grounds (upon which the court may order
possession if the allegations are proved and if the court considers it
reasonable to make the order). The grounds must be specied in the
notice, which must be a section 8 notice. The notice is in a prescribed
form. Section 8 ofthe Housing Act 1988 also species what minimum
notice period must be given – and this depends on the ground(s) being
used. Many landlords will need to take advice about service of notices and
termination using section 8, until they become familiar with the procedure.
A landlord will have to consider what it is that they wish to achieve by
commencing legal proceedings to end the tenancy. They will have to take
into account the time, eort and cost involved and also if they have used
all other methods of resolving a problem.
It may be benecial to obtain a possession order, even on discretionary
grounds, as the terms of any order may assist the landlord to inuence a
tenant to change their behaviour or to pay the rent arrears by instalments
or maintain the garden or whatever has been the problem.
Mandatory Grounds
Grounds 1-5 of the Housing Act 1988 require the landlord to serve notice
prior to the commencement of the tenancy, warning the tenant that
possession might be sought for the reason stated in that ground. In some
circumstances the court may decide to waive the requirement of notice if it
is just and equitable to do so. Grounds 1-5 are:
Ground 1 can be used if the property to be repossessed was, or after the
let is intended to be, returned to the landlord as their own home. For this
ground to be successful the landlord must have notied the tenant in
writing before the tenancy started, that he or she intended one day to ask
for the property back on this ground.
Ground 2 relates to a lender’s right to possession. If the property is subject
to a mortgage the landlord will often be required to serve this notice on
the tenants.
Ground 3 requires that the xed term is less than eight months and the
property has been let as a holiday home within the preceding 12 months.
Ground 4 is for further and higher education providers only.
Ground 5 is where the dwelling is owned for the purposes of a minister
of religion to better carry out their duties and the residence is needed for
such a purpose.
The remaining mandatory grounds, grounds 6-8, do not require notice to be
given in advance of the start of the tenancy.
Ground 6 relates to recovery of possession when the landlord needs
to carry out substantial building works. It cannot be used by a landlord
82 Ending a Tenancy
1 Pre-tenancy
against a tenant who was already in the property when the landlord bought
it. This is particularly important as a tenant may in fact be a regulated
tenant and be protected by the provisions of the Rent Act 1977 rather than
the Housing Act 1988. A landlord who purchases a property should check
the date that the person moved into the property and not just accept that a
shorthold contract supplied by the seller is in fact a shorthold.
Ground 7 can be used to recover possession after the death of the tenant
where the tenancy has devolved under their will or intestacy and the
tenancy was periodic.
Ground 8 relates to serious rent arrears and is the main ground used by
landlords of Housing Act 1988 tenancies seeking possession for rent
arrears. Both at the date of the service of the notice under section 8 of this
Act and at the date of the hearing
• if rent is payable weekly or fortnightly, at least eight weeks’
rent is unpaid
• if rent is payable monthly, at least two months’ rent is unpaid
• if rent is payable quarterly, at least one quarter’s rent is more
than three months in arrears or
• if rent is payable yearly, at least three months’ rent is more
than three months in arrears.
Discretionary Grounds
The court must consider the landlord’s claim and, if proved, the judge
has the power to make an absolute order or a suspended order, which is
usually with conditions. In some cases the court may decide to adjourn the
proceedings on terms that the tenant is directed to comply with conditions.
The terms of the adjournment may allow the landlord to bring the matter
back to court within a given period. To gain possession the landlord will
have to prove the facts and that it is reasonable for the court to award
possession on the facts of the case.
Grounds 9-17 are all discretionary grounds. They refer to ‘dwelling-house’
but this expression would include a at.
Ground 9 can be used where suitable alternative accommodation is
available for the tenant or will be available for him or her when the order
for possession takes eect.
Ground 10 can be used where some rent that is lawfully due from the
tenant:-
• is unpaid on the date on which the proceedings for possession
are begun and
• except where subsection (1)(b) of section 8 of the Housing Act
1988 applies, was in arrears at the date of the service of the
notice under that section relating to those proceedings.
Ground 11 can be used in cases where the tenant has persistently delayed
paying rent which has become lawfully due whether or not any rent is in
arrears on the date on which proceedings for possession are begun.
Ground 12 can be used where any obligation of the tenancy (other than
one related to the payment of rent) has been broken or not performed.
Ending a Tenancy 83
1 Pre-tenancy
Ground 13 is for use where the condition of the dwelling-house (or any
of the common parts if the dwelling is part of a larger building) has
deteriorated owing to acts of waste by, or the neglect or default of, the
tenant or any other person residing in the dwelling-house. In the case of
an act of waste by, or the neglect or default of, a person lodging with the
tenant or a sub-tenant of his or hers, the ground can also be used if the
tenant has not taken such steps as he or she ought reasonably to have
taken for the removal of the lodger or sub-tenant.
Ground 14 can be used in cases of anti-social behaviour committed by the
tenant or any other person living with the tenant or visiting the property if
that person
• has been guilty of conduct causing or likely to cause a
nuisance or annoyance to a person residing, visiting or
otherwise engaging in a lawful activity in the locality or
• has been convicted of :-
using the dwelling-house or allowing it to be used for immoral
or illegal purposes or
- an indictable (Crown Court) oence committed in, or in the
locality of, the dwelling-house.
Ground 15 can be used where the condition of any furniture provided for
use under the tenancy has, in the opinion of the court, deteriorated owing
to ill-treatment by the tenant or any other person residing in the dwelling-
house. In the case of ill-treatment by a person lodging with the tenant or
by the tenant’s sub-tenant, the tenant has not taken reasonable steps for
the removal of the lodger or sub-tenant.
Ground 16 relates to where the dwelling-house was let to the tenant in
consequence of his employment by the landlord seeking possession or a
previous landlord under the tenancy, and the tenant has ceased to be in
that employment.
Ground 17 can be used where the tenant is the person, or one of the
persons, to whom the tenancy was granted and the landlord was induced
to grant the tenancy by a false statement made knowingly or recklessly by
either the tenant or a person acting on the tenant’s instigation.
A landlord may use several grounds on an application for possession if
several grounds apply to the facts of a case. For example, it is possible
to use grounds 8, 10, and 11 at the same time. There is a good reason for
specifying all grounds that apply. If a tenant reduces the rent arrears to
below the specied sum at the date of the hearing, and the landlord has
only pleaded ground 8 [see section 5.3], the claim could be dismissed.
However, if the alternative grounds also apply, the court can still make an
order for possession, which may be absolute or suspended.
If one of the mandatory grounds is used and proven then the judge must
make an order for possession. The date of possession should normally be
14 days from the date of the hearing but the judge has discretion for it to
be postponed to a period not longer than six weeks after the making of the
order.
A landlord will not necessarily know if a tenant will be represented at court,
as they may not seek advice until shortly before the hearing. Therefore, any
84 Ending a Tenancy
1 Pre-tenancy
5.5 Powers and Duties of
District Judges
5.6 Absolute Orders or
Suspended (Postponed)
Orders
5.7 Applying to Court
for Possession –
Standard Procedure
landlord who is contemplating taking legal proceedings should seek advice
before doing so. The Legal Services Commission, in conjunction with the
Court Service, now provides emergency legal advice and representation
at most courts for unrepresented tenants facing possession proceedings
based upon rent arrears. Therefore a landlord may nd that they are at a
disadvantage if the tenant is represented and the landlord is not.
Judges are directed by the terms of the legislation on which the application
is made, and also by the Civil Procedure Rules (www.justice.gov.uk/courts/
procedure-rules/civil) and other regulations.
This means that there are some things that the judge must do and some
things that they may do. Judges must act fairly and impartially, and their
decisions will be based upon the facts that are proven, the rules that apply
to the case and/or the wider social consequences of any decision that they
make. Although a judge may strike out a claim if it is defective due to an
error, they may also allow some errors to be corrected and allow a case to
proceed.
A possession order granted by the court may be made as an absolute order
or suspended on terms. For example, a landlord’s allegations of anti-social
behaviour (ground 14) may be found to be proven and the tenant may
have produced no evidence to suggest that their conduct has changed or
will change. In that situation the court may decide to make an absolute
order. By contrast, an application made due to breach of contract on the
basis of the tenant failing to pay rent (say ground 10) may be granted as
a suspended order, if the tenant has shown that since the application was
made, they have commenced making regular payments towards the arrears.
As soon as the relevant notice period expires it is possible for the landlord
either to apply to the court in person or to instruct a solicitor to do so.
Only the landlord personally, or their solicitor, can sign the court papers.
A common reason for possession claims being rejected by the court is that
they are signed by a letting agent. A letting agent can help the landlord
draft the paperwork, but they cannot sign on the landlord’s behalf and
they do not have a right to represent the landlord at court in the landlord’s
absence. A landlord who is likely to be absent from the UK will need to
instruct a solicitor to commence legal action if they wish to be represented
in their absence.
After proceedings have been issued at court there is normally a waiting
period of at least a month for a court hearing. The tenant is not required
to vacate the property until there is a court order requiring them to do
so (although they will sometimes simply leave during this period). If a
landlord attempts to evict a tenant before the court order is made, they are
likely to commit a criminal – and imprisonable – oence.
If the court orders possession, the tenant will have to leave on the date
specied in the court order. This is called an absolute possession order.
If the court makes a suspended possession order and the tenant breaches
the conditions of it, the landlord may apply to the court for an absolute
possession order or a warrant for possession, depending on the terms of
the suspended order. Frequently the tenant will then apply to the court
for a ‘stay of execution’ which may be granted by the judge if the tenant
is able to present sucient evidence of their willingness and capability to
comply with the original or revised terms of the order or that something
Ending a Tenancy 85
1 Pre-tenancy
5.8 Applying to Court for
Possession –
Accelerated Procedure
5.9 After the Court Order
– and Eviction
has occurred that has led to the tenant being unable to comply with the
original terms. This may have been caused because the tenant had been
unable to obtain advice before the previous hearing.
An application for possession by the accelerated procedure is normally
processed using the N5B claim form.
The claim is dealt with through an exchange of papers without a court
hearing,. The court will issue the claim to the tenant who is then given
14 days to provide a response. The 14 days is from a designated date of
service which may be slightly later than the date the papers are received.
The tenant is given the opportunity to respond to the facts given in the
claim. If there is any dispute about the facts the court may decide to
hold an oral hearing at short notice to make a nding of fact. If, however,
the facts are not disputed and the claim is in order the judge will make
a decision to award possession, normally 14 days after the date of the
decision. The date may be later if the tenant has been able to establish that
they will suer undue hardship. The date cannot be later than 42 days after
the decision was made.
A landlord association may be able to recommend solicitors who specialise
in housing law and who can undertake this type of work for a xed fee.
Alternatively, the various landlord websites may provide guidance on the
procedure. The forms issued by the court are reasonably easy to follow and
perhaps after one application has been drafted professionally, a landlord
should be able to follow the guidance.
The court will normally award the costs of the application for possession
against the tenant but they may allow them time to pay if they are on a
limited income. A landlord may feel that it is not worth seeking to claim the
costs once the property has been recovered, if it is going to be dicult to
administer the instalments.
The landlord can continue to accept money from a tenant at any time
during the possession process, from service of the notice to eviction.
Indeed, the landlord must accept rent if it is oered to them.
If a possession order is made, technically this ends the tenancy. However,
the court will normally order that the landlord is entitled to receive
‘damages for use and occupation’ until the tenant actually vacates the
property, calculated on a daily basis. If possession is ordered on the
grounds of rent arrears, the court will normally order the tenant to pay
back the rent owed at a rate appropriate to their circumstances. If asked
to consider it, the court may also award a sum to cover interest on the
outstanding rent and the court costs associated with obtaining the order.
If a tenant is in receipt of Income Support and Housing Benet the court
will normally award the minimum expected deduction from benet (and
such an award against the Income Support will also entitle the landlord to
direct payments, even under Local Housing Allowance). After the end of the
tenancy the debt will merge with any other debts that the tenant has and
it will cease to be a priority. This is also relevant to whether a landlord may
feel it is viable to chase a debt after the end of the tenancy. It is common
advice to landlords that they may be throwing good money after bad by
pursuing the debt if the tenant is unlikely to be able to pay it.
The tenant should leave the property on or before the date of possession
but if they do not do so, a landlord must apply to the County Court for a
Warrant for Possession. A landlord cannot themselves evict a tenant, even
if they have a court order. If the tenant refuses to leave after the date
86 Ending a Tenancy
1 Pre-tenancy
5.10 Applying to the Court
for Rent Arrears Only
5.11 Rent Act Tenancies
specied in the order, a warrant for eviction must be obtained from the
court, using Form N325: Request for Warrant of Possession of Land. The
form, and details of the fee payable, is available from www.hmcourts-
service.gov.uk (look in the County Court section of the site).
The warrant is normally served on the property or the tenant by hand, and
a time is booked by the court for the baili to return and carry out the
eviction. The landlord should attend at the same time so that the baili can
formally hand over the property and, if necessary, arrange for the locks to
be changed. If the tenant still does not have anywhere to move to it may be
necessary for the tenant’s possessions to be retained for a reasonable time
until they can be collected or disposed of.
If the tenant has not already done so, the landlord may wish to advise
the tenant to apply to the local council’s homelessness services who may
assist with the provision of storage of the possessions and or temporary
and permanent accommodation. That will then mean that the landlord can
make arrangements for the property to be re-let.
If it is not necessary to obtain possession a landlord may wish to make a
claim under the terms of the tenancy agreement for debt using the small
claims procedure of the County Court. The amount awarded by the court
will be determined at the date of trial. If a claim is being made for interest
to be paid on the arrears this must be stated on the claim form because
interest will not be added to the debt automatically. If the sum is cleared
and then further arrears arise it will be necessary to submit a further claim.
The court service has a simple form (N1) that can be completed at the
local court or using moneyclaim online. The claim fees are based upon the
amount of debt due at the date of the claim. Following an application to the
court a claimant and defendant may be invited to reach an agreement to
settle by negotiation or by using a free telephone mediation service.
It is always worth making an eort to establish any reason for non-payment
of rent before taking action. Non-payment ,ay be a result of delays by
the local authority in processing a housing allowance claim, and liaison
with the tenant and local authority may well be sucient to resolve any
problem.
If the amount of the arrears (and any other charges) is less than the
tenancy deposit, it may be worth applying for the case to be adjudicated
in accordance with the tenancy deposit protection scheme. Make sure
that good paperwork is submitted to support the claim to the adjudicator.
Simply declaring on the application form that the tenant did not make a
payment will not usually be sucient.
Some types of tenancy do not fall within the statutory code set up by the
Housing Act 1988 and dierent rules for possession apply in these cases.
These are mainly tenancies which are protected under the Rent Act 1977
and contractual tenancies (for example residential lettings to companies
or where the annual rent exceeds £100,000). These can be complex and a
landlord should obtain specialist legal help.
Rent Act tenants are very dicult to evict, as they have long-term security
of tenure. Generally they can only be evicted if they are in arrears of rent or
if suitable alternative accommodation is provided for them.
If a Rent Act tenant is in arrears of rent
Ending a Tenancy 87
1 Pre-tenancy
5.12 Contractual or Common
Law Tenancies
It is possible to bring proceedings for possession on the basis of non-
payment of rent. In bringing these proceedings there is no need to serve
any form of notice on the tenant rst (although it is advisable to warn
the tenant that possession proceedings are imminent if they do not pay).
However, the judge has unlimited powers to suspend or stay the order as
they think t.
If a Rent Act tenant is not in arrears of rent
The only other eviction ground which has any chance of success is that
suitable alternative accommodation is available to the tenant. Note that
the accommodation must be on a protected tenancy (which it will be if
the suggested accommodation is to be provided by the same landlord)
or equivalent (if provided by another landlord). Oering a tenancy on an
assured shorthold basis will not be sucient.
There is a lot of case law on the question of ‘suitable alternative
accommodation’ and a landlord considering using this ground is advised to
seek legal advice, certainly before buying any replacement property.
Provided the proper procedure is followed, evicting contractual/common
law tenants should not be dicult. However, as the rules are dierent for
this type of landlord from others mentioned here, legal advice may need to
be sought.
Contractual tenancies include:
• lets of residential properties to companies (but not business
premises)
• lettings at a rent of over £100,000 or
• lettings by some resident landlords.
Holiday lets and university lettings to students also fall into this category.
Note that some resident landlords may set up contractual tenancies and
others will only give a licence to the occupier. Although these occupiers
are ‘excluded occupiers’ for the purposes of the Protection from Eviction
Act 1977, and no court order is required to evict them, the Criminal Law
Act 1977 still applies. This states that nobody should use or threaten
violence to gain entry to someone’s room if there is someone present who
is opposed to the forced entry – they risk criminal proceedings if they do.
If the common law tenant is in arrears of rent
It is possible to bring proceedings for possession on the basis of non-
payment of rent and in this event there is no need to serve any specic
form of notice on the tenant rst (although it is advisable to warn them
that possession proceedings are imminent if they do not pay). However,
the judge has unlimited powers to suspend or stay the order as they think
t. Many larger student-type HMOs in the private rented sector are likely
to be exempt from Housing Act 1988 status due to the annual rental
income. (Assuming the letting is all on a single contract it is the total rent
payable under the contract that counts not the individual contributions.)
The terms of the contract should specify when and how the tenancy can be
terminated.
88 Ending a Tenancy
1 Pre-tenancy
5.13 Unlawful Eviction
5.14 Unlawful Harassment
If the common law tenant is not in arrears of rent
It is not normally possible to evict a tenant during the xed term unless
there is a break clause in the tenancy agreement or the tenant breaches
the terms of that tenancy agreement and the agreement states it can be
terminated for breach. It is technically possible to seek possession for
breaches of the tenancy agreement other than non-payment of rent, but
this is not often successful. Usually, a notice under section 146 of the Law
of Property Act 1925 is required, giving the tenant notice that they are in
breach of the tenancy conditions and an opportunity to put things right,
if possible. Legal advice should be sought from a solicitor experienced in
eviction work to do this properly.
Contractual/common law tenancies do not have the same ‘statutory
periodic’ run-on that the Housing Act 1988 assured and assured shorthold
tenancies do. At the end of a xed term, the landlord will be entitled
to apply for a possession order. If possession is not required, a specic
renewal should be agreed. If it is a periodic tenancy the landlord can end
the tenancy at any time by serving a ‘Notice to Quit’ (a section 21 notice
is often referred to as a notice to quit but this is not correct and not the
document referred to here). This must give a notice period of no less than
four weeks (but longer if the rent is payable monthly or more). The notice
must expire on the last day or the rst day of a period of the tenancy and
must be in writing and must contain prescribed information. Once this has
expired, if the tenant has not vacated, the landlord can apply to the court
for an order for possession which they are entitled to as of right. A landlord
does not need to give any reason for asking for possession.
The Protection from Eviction Act 1977 makes it a criminal oence for any
person to unlawfully deprive a ‘residential occupier’ of their occupation of
the premises. This means that, unless the tenant agrees to vacate, the only
legal way a landlord can evict a tenant is by obtaining a court order. Any
term in the tenancy agreement that says otherwise will be void.
‘Residential occupier’ is dened in the Protection from Eviction Act 1977.
It covers virtually everyone living in residential accommodation including
tenants who rent from a private landlord and any of their friends or visitors
who have gained lawful access to the property. It is a common belief that
this Act does not apply to licences. In almost all cases it does.
The Act does specify certain limited classes of occupier, in particular
lodgers who share living accommodation with their landlords, but even
here eviction must not involve any force. If considering evicting a lodger
the landlord should still seek legal advice before evicting because getting
it wrong could be a criminal oence.
The procedures for lawful eviction of tenants are set out in the various
Housing and Rent Acts as detailed above.
Harassment is a criminal oence under the Protection from Harassment
Act 1997. There is also a special type of harassment relevant to residential
premises. It is a criminal oence under the Protection from Eviction Act
1977 for any person to harass a residential occupier, or any of their friends
or visitors who have gained lawful access to the property, in such a way
that as a result they could be expected to give up their accommodation.
The key elements of harassment are dened as:
Ending a Tenancy 89
1 Pre-tenancy
Acts likely to interfere with the peace and comfort of the residential
occupier or the persistent withdrawal of essential services and either is
committed by any person with the intention of causing the residential
occupier to leave or is committed by any person with intent to stop the
residential occupier pursuing their legal rights (for example, complaining
about disrepair) or is committed by a landlord or agent who knows or has
reasonable cause to believe that a likely result of their acts is that the
residential occupier will leave, or will not pursue their legal rights.
Common acts of harassment include:
• threats of violence or unlawful eviction
• disconnecting gas, electricity or water
• breaking o the key in the lock
• deliberately disruptive repair works
• frequent visits, at unreasonable hours
• entering the property without the tenant’s permission.
Local authorities may prosecute landlords who harass tenants. If a landlord
receives a letter from their local authority regarding alleged harassment
against the tenant or any of their friends or visitors who have gained lawful
access to the property, this should be taken very seriously. Be very careful
in any dealings with that tenant and keep a detailed record of all meetings
and telephone conversations. A landlord should follow any advice given
to them by the council ocer and they should also seek immediate advice
from a solicitor experienced in landlord and tenant law.
A landlord or agent can be prosecuted in the magistrate’s court or in
very serious cases a case may be transferred to the Crown Court. A
penalty on conviction may include a ne of up to £5,000 and/or a term of
imprisonment.
Tenants may also make a claim to the County Court for an injunction to
reinstate them to the property and can claim special and general damages
which can amount to tens of thousands of pounds. In addition the landlord
may have to take action to terminate a new tenancy and likewise pay
further compensation if they have given the tenancy to a new tenant. If an
injunction is granted to reinstate a tenant and the landlord fails to abide by
the order, the court may commit the landlord to prison for contempt.
90 Smoking and the Health Act 2006
1 Pre-tenancy
Since1 July 2007 it has been illegal to smoke or allow smoking in enclosed
public areas of properties. The Health Act 2006 which bans smoking
imposes obligations to take action to implement the ban and creates a
number of criminal oences for those who choose to ignore or break the
law.
Tenants of individually let rooms and their guests are only permitted to
smoke in bedrooms with the door closed. Smoking is not permitted in
the common areas of the building, which are dened as public areas and
smoking is not permitted in kitchens/living rooms, corridors or shared
toilets or bath/shower rooms. It does not matter if all the tenants and
guests agree that smoking in the common areas is acceptable – it is still
not legal – because the shared areas are not part of any individual tenant’s
‘dwelling’. The ‘dwelling’ is conned to the room that has been let to them.
Where tenants are renting the entire dwelling – including tenants who are
renting on a joint tenancy and jointly renting the entire premises - then
there are no ‘public areas’ within their premises. The Health Act ban
allows smoking in their shared living space, because it forms part of their
dwelling.
Common stairwells and entry lobbies serving ats will be public areas.
Where public areas are involved appropriate ‘no smoking’ signs should be
clearly displayed at the entrances to and within premises in required areas.
Signs must meet a number of minimum requirements. They must:
• be at least A5 size
• display the ‘no smoking’ symbol
• contain, in characters that can be easily read by persons using
the entrance, the words ‘No smoking. It is against the law to
smoke in these premises’.
Inside buildings, for example at an entrance to smoke-free premises from
other smoke-free premises, signs can simply show the no-smoking symbol.
Enforcement
Enforcement can be dicult. People smoking tobacco products in
prohibited areas should be politely asked to desist. Tenants who refuse
to desist from smoking in a public area after being asked politely to do so
should be provided with a letter from their landlord advising them that
their failure to adhere to this policy is also a criminal oence, and that
unless the tenant complies with the law action will be taken against them.
If a tenant continues to smoke then it is recommended that they should
be sent a letter by a solicitor. If no positive response is received to the
solicitor’s letter and other tenants are complaining then the landlord
should take legal advice in considering repossession proceedings. The
landlord themselves can face criminal proceedings and a hefty ne if they
fail to take action to stop unlawful smoking.
6. Smoking and the Health Act 2006
Appendixes 91
1 Pre-tenancy
Preparation before letting
4 before investing, prepare a business plan that
takes into account the cost of the investment,
running costs, cash ow and rent level. Allow
at least 7% for voids
4 if necessary obtain permission from
mortgage lender and/or freeholder for
renting the property
4 consider what part of the private rented
sector market the property is designed to
serve
4 decide on the kind of tenant to let to. Is
a tenant needing Housing Allowance an
issue? Is the property to be let furnished or
unfurnished?
4 calculate realistically whether the rental
income will cover loan or mortgage
payments, repairs and all the other rental
costs. If not, budget to set aside money from
earnings each month (in the early years) to
cover any shortfall
4 decide on the likely market rent
4 decide whether gas, electricity and water
charges are included in the rent
4 consider who will manage the property and
the cost of this. If using an agent agree costs
and levels of service
4 ensure adequate levels of relevant insurance
(check the policy is suitable for rented
property)
4 deal with the tax implications of the revenue
stream and inform Revenue and Customs
4 consider joining a landlord association and
undertaking professional development
4 obtain planning or Building Control approval
for major improvement work done to
property
4 make sure the property is both safe and
healthy for any potential occupiers or
visitors, including;
• adequate heating and insulation
• free from tripping and falling hazards
• free from signicant disrepair and
asbestos
• good lighting and ventilation
• good security
• good sanitation, food preparation and is
hygienic
4 obtain a tenancy agreement suitable for your
letting and avoid unenforceable unfair terms
4 decide on length of letting
4 advertise through the internet, agent,
newspaper or other means
4 obtain an Energy Performance Certicate
(EPC)
4 undertake an annual gas safety check by a
Gas Safe registered engineer
4 comply with the electrical and furniture
standards
4 ensure the property meets with the relevant
re safety standards with the tting of alarms
and/or smoke/heat detectors and emergency
lighting.
If the property is a House in Multiple Occupation
(HMO):
4 ensure any electrical installation is inspected
by a qualied person before letting and
every ve years subsequently
4 contact your local authority to check whether
a licence is needed and if it is apply for a
licence and comply with the conditions of
the licence and the HMO regulations
4 ensure a re risk assessment is carried out
under the Fire Safety Order
4 ensure that smoking does not take place in
public areas in accordance with the Smoking
and Health Act 2006.
Appendix 1 - Practical checklist for landlords: obligations and considerations
92 Appendixes
1 Pre-tenancy
When the tenant moves in
4 sign the tenancy agreement - two copies,
landlords retain one signed by tenant and
tenant should have one signed by landlord
4 consider asking tenant to sign bank standing
order form for rent payments, or letter of
authority to the Housing Benet oce if
tenant is on benet
4 complete and agree an Inventory and
Schedule of Condition (consider using
professional inventory clerk, if appropriate)
4 give the tenant the landlord’s (or agent’s)
contact details for repairs and other
problems - name, address and telephone
4 notify the utility suppliers and the local
authority (for Council Tax etc) of the details
of the new tenant/s
4 inform the tenant/s of utility suppliers etc
and read any relevant meters
4 if charging a deposit and letting on an
assured shorthold tenancy ensure that
the deposit is protected under one of the
schemes available and give the required
information to tenants to conrm this
4 consider any local council schemes such as
deposit guarantees
4 keep tax records of income and expenditure
and if rental income exceeds (allowable)
expenditure, set an amount aside to cover
future tax demands. Complete a tax return
ideally soon after the end of your tax year
4 provide receipts to tenant for any cash rent
payments
4 keep detailed records of repair requests,
inspections, safety checks, repairs done,
other management issues and a rent
statement.
When the tenant moves out
4 make a note of when a tenancy is due to
end and see if the tenant wants to extend or
renew their agreement
4 if leaving, arrange a joint inspection of
the property and agree on any damage or
decoration that needs rectifying
4 provide information about any cleaning
required
4 advise the tenant about taking nal utility
readings for an end of tenancy bill
4 make arrangements for the handover of keys.
Appendixes 93
1 Pre-tenancy
Defects&decienciescanbescoredwiththefollowingkey:1.notsatisfactory2.defective3.seriouslydefective
Address
Reason for inspection Name of person doing inspection
Date
Name & address of Owner(s)
Tel
Name & address of manager
Tel
Property age: Pre 1900 c
1900 - 1920 c
1920 - 1945 c
1946 - 1979 c
Post 1979 c
Description of dwelling:
Mid. back to back c End back to back c Mid terr. c End terrace c Semi detached c Detached c
No. of storeys (excl basement): Habitable basement: Y / N Cellar: Y / N
Mixed Commercial Use: Y / N
If Y give details _________________________________________________________________________________________________
_________________________________________________________________________________________________________________
(considerresafety,security)
Occupancy
Vacant : Y / N Normal max. no. occupiers ________ Children under 11 yrs Y / N Elderly persons Y / N
(considerovercrowding&hazardstovulnerablepersons)
Accommodation (considerovercrowding,adequacyofno.ofkitchens,bathrooms,WCs,maximumoordistancesfromamenities,
compliancewithlocalauthority’sguidanceonstandards)
No. of bedrooms No. of living rooms No. of kitchens No. of bathrooms Separate WC Y / N
Mode Of Occupation: Indicate which is applicable:
Single occupation c Shared HMO - group contract c Shared HMO - individual contracts c
Bedsit HMO c Non self-contained ats c
Licensable HMO Y / N
(therearedierentresafetyrequirements&amenitylevelsfordierentmodesofoccupation)
Certicates: Issue date
Gas Safety Certicate Available Y / N ____ / ____ / ____
Current Electrical Periodic Inspection Report Y / N ____ / ____ / ____
Fire Alarm Maintenance Cert Y / N ____ / ____ / ____
Energy Performance Certicate Y / N ____ / ____ / ____
Emergency Lighting Y / N ____ / ____ / ____
Details deposit lodged with scheme Y / N ____ / ____ / ____
Appendix 2 - Property Inspection Form
94 Appendixes
1 Pre-tenancy
Security
Burglar Alarm Y / N 20 minute cut out Y / N Key holder details provided to local authority ____________________
(consider security & avoiding noise nuisance)
Insulation (consider excess cold & condensation)
Adequate quality / depth in loft space Y / N Insulation in roof structure in attic rooms Y / N
Adequate quality / depth in at roof structure Y / N Cavity wall insulation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Water supply
Storage tanks protected from contamination
Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
:
Drainage
Adequate foul & surface water drainage in sound repair Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
ROOM LOCATION : USE:
Ceiling (considerdamp,mould,disrepair)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls (considerdamp,mould,disrepair,resafety)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floors (considerdamp,disrepair,trippinghazards)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Windows (considerfallsbetweenlevels,entrapment,adequacynaturallighting,ventilation,resafety)
Type __________________________________________________________________________________________________________
Opening restrictors Y / N Sill height <1.1m above oor level Y / N Lockable Y / N
Safety glass (BS Kite Mark) Y / N Access to clean Y / N Easy to open Y / N Openable for ventilation Y / N
Useable as escape window Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Space heating (considerexcesscold,resafety)
Type of heating ________________________________________________________________________________________________
Heating controllable Y / N Capable of heating dwelling adequately Y / N Properly maintained Y / N
Safely sited heaters Y / N Unguarded ames/ hot surfaces Y / N CO Detector Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Appendixes 95
1 Pre-tenancy
Security
Burglar Alarm Y / N 20 minute cut out Y / N Key holder details provided to local authority ____________________
(consider security & avoiding noise nuisance)
Insulation (consider excess cold & condensation)
Adequate quality / depth in loft space Y / N Insulation in roof structure in attic rooms Y / N
Adequate quality / depth in at roof structure Y / N Cavity wall insulation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Water supply
Storage tanks protected from contamination
Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
:
Drainage
Adequate foul & surface water drainage in sound repair Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
ROOM LOCATION : USE:
Ceiling (considerdamp,mould,disrepair)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls (considerdamp,mould,disrepair,resafety)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floors (considerdamp,disrepair,trippinghazards)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Windows (considerfallsbetweenlevels,entrapment,adequacynaturallighting,ventilation,resafety)
Type __________________________________________________________________________________________________________
Opening restrictors Y / N Sill height <1.1m above oor level Y / N Lockable Y / N
Safety glass (BS Kite Mark) Y / N Access to clean Y / N Easy to open Y / N Openable for ventilation Y / N
Useable as escape window Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Space heating (considerexcesscold,resafety)
Type of heating ________________________________________________________________________________________________
Heating controllable Y / N Capable of heating dwelling adequately Y / N Properly maintained Y / N
Safely sited heaters Y / N Unguarded ames/ hot surfaces Y / N CO Detector Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Electrics
Age (Old / New) ________________________________________________________________________________________________
Adequate (no. & siting) power points Y / N Adequate lighting Y / N Properly located Meters / Fuses Y / N
Earth bonding Y / N Presence of water Y / N Safe electrical appliance Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire Safety
Smoke/heat detectors Y / N Fire resistant furnishings / fabrics Y / N Adequate storage space Y / N
Clothes drying facilities available Y / N Walls – adequate re separation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire safety: room door
Ill tting Y / N Fire proof glazing Y / N Fire Door Y / N Intumescent Strip Y / N Smoke seal Y / N
Self closer Y / N Openable without key Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Lighting:
Obstructed windows Y / N Small windows
Y / N Inappropriate position of window
Y / N
Adequate articial light Y / N Adequate natural lighting
Y / N
Area glazing to oor area at least 1:10 Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
KITCHEN
Ceiling: (consider damp , condensation, mould ,disrepair, cleansable)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls: (consider damp, mould, condensation, disrepair, cleansable, dirt traps)
Cleansable surfaces Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floors considerdamp,disrepair,trippinghazards,cleansable,dirttraps)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Windows:
Type __________________________________________________________________________________________________________
Easy to clean Y / N Easy to open Y / N Adequate ventilation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Means of heating:
Is kitchen used as dining room Y / N Type of heating _________________________________________________________
Heating controllable Y / N Safely sited heaters Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
(consider heating required if kitchen also used for dining)
96 Appendixes
1 Pre-tenancy
Electrics:
Age (Old / New) _________________________________________________________________________________________________
Adequate no. of power points Y / N Power points sited for easy use Y / N
Power points sited near sink Y / N Mechanical extract ventilation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire Safety:
Smoke/heat detectors Y / N Fire resistant furnishings / fabrics Y / N Adequate storage space Y / N
Clothes drying facilities available Y / N Fire blanket Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Room door:
Ill tting Y / N
Glazed Y / N
Fire Door Y / N
Intumescent Strip Y / N
Smoke seal Y / N
Self closer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Lighting:
Adequate articial light Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Food prep: (considerfoodhygiene,cleansablesurfaces,safety,adequacyofamenities)
Provision of adequately sized cooker Y / N Safe siting of cooker Y / N Sink with H/C water Y / N
Impervious work surface Y / N Adequate sized dry food storage Y / N Microwave Y / N
Safe Layout / Adequate space Y / N Sink Y / N Space for fridge/freezer Y / N
Adequate size kitchen area Y / N Dish washer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
BATHROOM / WC LOCATION:
Ceiling: (considerdamp,mould,condensation,disrepair)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls: (consider damp ,mould, condensation, disrepair)
Cleansable wall surfaces Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floors: (considernon-slipsurface,cleansable)
Cleansable oor surface Y / N Non-slip oor covering Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Appendixes 97
1 Pre-tenancy
Electrics:
Age (Old / New) _________________________________________________________________________________________________
Adequate no. of power points Y / N Power points sited for easy use Y / N
Power points sited near sink Y / N Mechanical extract ventilation Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire Safety:
Smoke/heat detectors Y / N Fire resistant furnishings / fabrics Y / N Adequate storage space Y / N
Clothes drying facilities available Y / N Fire blanket Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Room door:
Ill tting Y / N
Glazed Y / N
Fire Door Y / N
Intumescent Strip Y / N
Smoke seal Y / N
Self closer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Lighting:
Adequate articial light Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Food prep: (considerfoodhygiene,cleansablesurfaces,safety,adequacyofamenities)
Provision of adequately sized cooker Y / N Safe siting of cooker Y / N Sink with H/C water Y / N
Impervious work surface Y / N Adequate sized dry food storage Y / N Microwave Y / N
Safe Layout / Adequate space Y / N Sink Y / N Space for fridge/freezer Y / N
Adequate size kitchen area Y / N Dish washer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
BATHROOM / WC LOCATION:
Ceiling: (considerdamp,mould,condensation,disrepair)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls: (consider damp ,mould, condensation, disrepair)
Cleansable wall surfaces Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floors: (considernon-slipsurface,cleansable)
Cleansable oor surface Y / N Non-slip oor covering Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Windows: (consider falls between levels, entrapment, adequacy natural lighting, ventilation, re safety)
Type ___________________________________________________________________________________________________________
Opening restrictors Y / N Sill height <1.1m above oor level Y / N Lockable Y / N
Safety glass (BS Kite Mark) Y / N Access to clean Y / N Openable for ventilation Y / N Easy to open Y / N
Useable as escape window Y / N Safe external surface below Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
WHB:
Conveniently sited Y / N Adequate for nos. of occupants Y / N Wall tiled above whb Y / N
Adequate Lighting Y / N Constant supply hot & cold water Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
WC:
Adequate for nos. of occupants Y / N Adequate Vent Y / N Cleansable oor covering Y / N
Adjacent WHB Y / N Separate WC provided if licensed HMO Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Bath/shower:
Adequate Privacy Y / N Properly sited Y / N Cleansable wall surfaces Y / N
Adequate for nos. of occupants Y / N Poor friction of internal surface Y / N Safe siting of taps / shower Y / N
Adequate supply constant hot & cold water Y / N Adequate size Y / N Handrails / grab rails Y / N
Adequate Lighting Y / N Space Heating Y / N Projections Y / N Pull Switch Y / N
Is there anything which would increase the likelihood of an electric shock? Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
STAIRS / LANDING/ HALLWAY* LOCATION:
Ceiling: (considerdisrepair,resafety)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Walls: (considerdamp,disrepair,resafety)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Floor: (consider falls, tripping hazards, disrepair)
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Windows: (considerfallsbetweenlevels,entrapment,borrowednaturallighting,ventilation,resafety)
Type ___________________________________________________________________________________________________________
Opening restrictors Y / N Sill height less than 1.1m above oor level Y / N Lockable Y / N
Safety glass (BS Kite Mark) Y / N Access to clean Y / N Openable for ventilation Y / N Easy to open Y / N
Useable as escape window Y / N Safe external surface below: Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
98 Appendixes
1 Pre-tenancy
Stairs:
Treads less than 280mm or more than 360mm Y / N Riser less than 100 or more than 180mm Y / N
Uneven treads/risers Y / N Winders Y / N Stair width less than 1000mm Y / N Poor tread grip Y / N
Sound repair Y / N Projections into stairway Y / N Hard surfaces at foot of ight Y / N
Long ight of steps Y / N Steep pitch ( more than 42o) Y / N
Handrail height ( less than 900 or more than 1000mm) Y / N Any glazing is safety glass Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Lighting:
Adequate lighting at top & bottom of ight) Y / N Proper switch location Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire Safety:
Smoke detector Y / N Stairway free of obstructions Y / N Stairway free of ammable substances Y / N
Fire extinguishers Y / N Emergency lighting Y / N Whole stair (dedicated lighting) Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Doors to stairs/ landing:
Glass present Y / N Safety glass Y / N Fire Door Y / N Intumescent Strip Y / N Smoke seal Y / N
Self closer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Guarding to staircase / landing:
Fall prevention guarding (balustrades and handrails) Y / N Gaps between balustrades more than 100mm Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
EXTERNAL ELEVATION:
Paths / yards:
Adequate night illumination Y / N Safe steps Y / N Excessively steep slope Y / N Handrails Y / N
Adequate slip resistance Y / N Tripping hazards Y / N Facilities for refuse storage Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
External Door:
Ill tting Y / N Door viewer Y / N Door locks Y / N Door chains Y / N Secure Y / N
Can be opened from inside without key Y / N Security grille can be opened from inside without key Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Entrance steps:
Guarding Y / N Handrails Y / N Adequate slip resistance Y / N Excessively steep slope Y / N
Security Lighting Y / N Steps worn Y / N Uneven treads & risers Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Appendixes 99
1 Pre-tenancy
Stairs:
Treads less than 280mm or more than 360mm Y / N Riser less than 100 or more than 180mm Y / N
Uneven treads/risers Y / N Winders Y / N Stair width less than 1000mm Y / N Poor tread grip Y / N
Sound repair Y / N Projections into stairway Y / N Hard surfaces at foot of ight Y / N
Long ight of steps Y / N Steep pitch ( more than 42o) Y / N
Handrail height ( less than 900 or more than 1000mm) Y / N Any glazing is safety glass Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Lighting:
Adequate lighting at top & bottom of ight) Y / N Proper switch location Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Fire Safety:
Smoke detector Y / N Stairway free of obstructions Y / N Stairway free of ammable substances Y / N
Fire extinguishers Y / N Emergency lighting Y / N Whole stair (dedicated lighting) Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Doors to stairs/ landing:
Glass present Y / N Safety glass Y / N Fire Door Y / N Intumescent Strip Y / N Smoke seal Y / N
Self closer Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Guarding to staircase / landing:
Fall prevention guarding (balustrades and handrails) Y / N Gaps between balustrades more than 100mm Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
EXTERNAL ELEVATION:
Paths / yards:
Adequate night illumination Y / N Safe steps Y / N Excessively steep slope Y / N Handrails Y / N
Adequate slip resistance Y / N Tripping hazards Y / N Facilities for refuse storage Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
External Door:
Ill tting Y / N Door viewer Y / N Door locks Y / N Door chains Y / N Secure Y / N
Can be opened from inside without key Y / N Security grille can be opened from inside without key Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
Entrance steps:
Guarding Y / N Handrails Y / N Adequate slip resistance Y / N Excessively steep slope Y / N
Security Lighting Y / N Steps worn Y / N Uneven treads & risers Y / N
Defects / comments __________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
General:
The following are in satisfactory, safe repair: Defects/comments:
Flaunching to chimney pots Y / N _________________________________________________________________
Pointing to chimney stack Y / N _________________________________________________________________
Lead ashings to stack Y / N _________________________________________________________________
Roof tiles/slates Y / N _________________________________________________________________
Verge pointing Y / N _________________________________________________________________
Verge ashing Y / N _________________________________________________________________
Gutters Y / N _________________________________________________________________
Rainwater downpipes Y / N _________________________________________________________________
Bathroom waste drainage pipe work Y / N _________________________________________________________________
WC waste drainage pipe work Y / N _________________________________________________________________
Soil vent stack Y / N _________________________________________________________________
Pointing to walls Y / N _________________________________________________________________
External ues Y / N _________________________________________________________________
Damp proof course not breached Y / N _________________________________________________________________
Boundary walls & fences Y / N _________________________________________________________________
Gardens tidy & free of rubbish Y / N _________________________________________________________________
Exterior decoration Y / N _________________________________________________________________
Outbuildings Y / N _________________________________________________________________
General comments ___________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
100 Appendixes
1 Pre-tenancy
Summary of Property Inspection – summary of checks of most common hazards
Each item should be checked and a tick placed in the Yes or No box indicating that the item is satisfactory or not.
If not applicable, please write N/A. Items not satisfactory and needing remedial action to be marked for priority
as low L, medium M or high H. The Certicate of Property Inspection should be retained in your property le.
Hazard Condition Satisfactory
Y / N
Action
Priority
1. Structural
Stability
The property is in good structural order and is not likely to cause injury due
to failure of any structural element
2. Repair The elements, fabric and xtures of the building are in good repair and
wind & weatherproof
3. Falls on the
level
There are no unsecured items or tripping hazards
4. Falls on stairs The stairs are in sound repair, coverings secure, handrails provided and
adequate articial lighting
5. Falls between
levels
Guards are in place to prevent falls
6. Falls in the bath Floor coverings in bathrooms are non-slip, grab rails are provided
7. Dampness &
mould growth
The roof covering, ashings, eaves guttering and all other building
elements have been checked and dampness is not penetrating into the
dwelling. Plumbing and drainage items have been checked and are free
from leakage. There is no evidence of rising or penetrating dampness.
8. Electrical
Wiring
The electrical wiring & appliances are in a safe, operational condition. It is
recommended that a periodic inspection report and certicate should be
obtained and renewed every ve years by a qualied electrician. This is
mandatory in HMOs.
9. Gas
Installations
All gas installations have been inspected and certied by a Gas Register
approved installer and is in a safe condition.
10. Security The property has adequate security measures tted
11. Excess cold Ecient eective space heating controllable by tenants is provided
12. Lighting Adequate natural & articial lighting is provided
13. Water Supply Suitable supplies of both hot and cold water are provided to the kitchen
and bathroom amenities. The cold water supply is free of contaminants,
particularly concerning lead (from lead piping) and from uncovered
cisterns.
14. Food safety
- facilities for
cooking and food
preparation
The layout of the kitchen is such as to provide a safely designed and
hygienic place to prepare and cook food. Surface nishes to walls, oor
and ceiling are easy to clean. The facilities provided are sucient for the
number of persons accommodated within the premises
15. Personal
hygiene,
sanitation &
drainage
The accommodation is provided with adequate facilities for washing,
including a bath or shower and wash hand basin, and WC. Generally
this provision is adequate for up to ve persons, additional facilities are
required with increased occupancy. The drainage provided for foul, waste
and surface water is in satisfactory condition
16. Asbestos Property is free of asbestos or existing asbestos is in safe condition
17. Flames & hot
surfaces
Measures are in place to minimize burns & scalds
18. Collision &
entrapment
Measures are in place to minimize accidents. Floor to ceiling heights are
adequate
19. Fire Property has been risk assessed & re safety measured provided
20. Overcrowding Property is satisfactory for the number of occupants
I conrm that I have carried out an inspection of the property and checked all the items that are applicable.
NAME __________________________________ SIGNATURE __________________________ DATE ____ / _____ / ____
Appendixes 101
1 Pre-tenancy
PLAN FOR REMEDIAL ACTION & TIMESCALE TO CARRY OUT
HAZARD REMEDIAL ACTION TIMESCALE
102 Appendixes
1 Pre-tenancy
Rent assessment committees are made up of two or three people -
usually a lawyer, a property valuer and a lay person. They are drawn from
rent assessment panels - bodies of people with appropriate expertise
appointed by Government Ministers.
There are six rent assessment panels in England and Wales. The
committees are independent of both central and local Government.
Rent assessment panels have the following functions for private lettings:
• tenants of assured shorthold tenancies can refer their rent for
review during the rst six months of their original tenancy, if
they consider the rent is above a market rent
• tenants of assured/assured shorthold tenancies can refer a
rent for review where the landlord has sought to increase it
under the notice procedure under section 13 of the Housing
Act 1988
• tenants of assured/assured shorthold tenancies can refer
for review a landlord’s notice of a change in the tenancy
agreement terms under section 6 of the Housing Act 1988
(this is very rare and therefore will not be discussed further)
• either landlords or tenants can refer a rent ocer’s decision
on a ‘fair rent’ under the Rent Act 1977 if they disagree with it.
There is no appeal against a committee’s decision except on a point of law.
The committee may make a decision by considering the relevant papers
although you or the tenant can ask for an informal hearing, which you
may both attend. There is no charge for a committee decision. When
settling disputes on rent, the committee normally decides what rent could
reasonably be expected for the property if it were let it on the open market
under a new tenancy on the same terms.
It does not take into account any increase in the value of the property due
to voluntary improvements by the tenant or any reduction in the value of
the property caused by the tenant not looking after the property.
The committee may agree the proposed rent or set a higher or lower rent.
More information on the work of the rent assessment committees is
available from the Residential Property Tribunal Services website at www.
justice.gov.uk.
Appendix 3 - Rent assessment committees
Appendixes 103
1 Pre-tenancy
Appendix 4 - Where to get help
Central and local Government
Department for Communities & Local Government
(CLG)
Responsibleforpolicyonhousing,planning,regional
andlocalGovernmentandthereservice.Providesa
rangeofusefulinformationandleaets.
www.communities.gov.uk
Department of Work & Pensions
Providesbenetsandservicesforawiderangeof
peopleincludingHousingBenet.
www.dwp.gov.uk
Direct.gov.uk
Links to Government departments and local council
websites.
www.direct.gov.uk
The Court Service
Forcourtformsandinformationleaets.
www.hmcourts-service.gov.uk
The Residential Property Tribunal
Forinformationabouttheworkoftherentassessment
committees and their jurisdiction under the Housing Act
2004.
www.justice.gov.uk/tribunals/residential-property
Health & Safety Executive
Forinformationaboutgassafety.
www.hse.gov.uk
Oce of Fair Trading
Consumer advice and guidance on unfair terms in
tenancyagreements.
www.oft.gov.uk
LACORS (LGA)
Responsibleforoverseeinglocalauthorityregulation.
www.lacors.gov.uk
Housing Network
Onlinehousingandrealestatenewsresource.
www.housingnetwork.co.uk
Department of Business Innovation & Skills
www.berr.gov.uk
Valuation Oce Agency
www.voa.gov.uk
Planning Portal
Onlineplanningandbuildingregulationsresource.
www.planningportal.gov.uk
HM Revenue & Customs
www.hmrc.gov.uk
Ministry of Justice
IncludesinformationonCivilProcedureRules.
www.justice.gov.uk
Residential Property Tribunal Service (RPTS)
Public body that can decide many Rent and Leasehold
disputes.
www.justice.gov.uk/tribunals/residential-property
Landlord associations
Landlord associations provide advice and information
for member landlords. Some organisations provide
information accessible to non-members.
Residential Landlords’ Association
Supportingallprivaterentedsectorlandlords.Owned
andtrustedbyitsmembers.Forinformationor
membership enquiries call 0845 666 5000 or visit the
website.
www.rla.org.uk
National Landlords’ Association
For further information or to join over the telephone (by
credit or debit card) the Membership Department is on
02078408937ore-mail[email protected].Itis
alsopossibletojoinviathewebsite.
www.landlords.org.uk
Guild of Residential Landlords
www.landlordsguild.com
Association of Residential Letting Agents
www.arla.co.uk
Landlords UK
Links,forumsandinformation.
www.landlords-uk.net
Landlord Law
Legalinformation,formsandservicesforlandlordsand
tenants.
www.landlordlaw.co.uk
Landlord Zone
Informationforlandlords,tenants&agents.
www.landlordzone.co.uk
LLAS and London and South East Landlords Day
www.londonlandlord.org.uk
Decent and Safe Homes (East Midlands)
www.eastmidlandsdash.org.uk
104 Appendixes
1 Pre-tenancy
Residential Landlord
Free information and advice for landlords and property
investors
www.residentiallandlord.co.uk
Report Registers
Search for Domestic Energy Assessors (DEAs).
www.hcrregister.com
Landlord Accreditation Scotland
For information about landlord accreditation scheme
for Scotland
www.landlordaccreditationscotland.com
Landlord Accreditation Wales
For information about landlord acceditation scheme for
Wales
www.welshlandlords.org.uk
Agents’ professional bodies websites
The Royal Institute of Chartered Surveyors
www.rics.org
The National Approved Letting Scheme
www.nalscheme.co.uk
The National Association of Estate Agents
www.naea.co.uk
The Association of Independent Inventory Clerks
www.theaiic.co.uk
Lawpack Publishing
Lowcostformsforlandlords.
www.lawpack.co.uk
The Leasehold Advisory Service
Forlandlordsofatsonlongleaseswhomayhave
problemswiththeirfreeholder.
www.lease-advice.org
Gas Safe Register
www.gassaferegister.co.uk
Electrical Safety Council
www.esc.org.uk
Energy Eciency Partnership for Buildings
www.eeph.org.uk
Equality and Human Rights Commission
Providing advice and guidance to promote equality and
humanrights.
www.equalityhumanrights.com
Consumer Focus
www.consumerfocus.org.uk
Energy Performance Certicate and Home Condition
Report Registers
Search for Domestic Energy Assessors (DEAs)
www.hcrregister.com
Electrical Safety Council (ESC)
An independent charity committed to reducing deaths
andinjuriesthroughelectricalaccidents.
www.esc.org.uk
Unipol Student Homes
Acharityestablishedtohelpstudentsndthebest
housingtheycan,todriveupstandardsandtobea
beaconofgoodpracticeforotherhousingsuppliers.
www.unipol.org.uk
The Accreditation Network UK (ANUK)
Thenationalbodythatpublicises,promotesandshares
goodpracticeinaccreditation.
www.anuk.org.uk
Universities UK (UUK)
Administers one Government-approved national scheme
for buildings controlled and managed by educational
establishments.
www.universitiesuk.ac.uk
Deposit Protection Services
Deposit Protection Service
tel: 0844 4727 000
www.depositprotection.com
The Dispute Service
tel: 0845 226 7837
www.thedisputeservice.co.uk
Mydeposits
t:el: 0844 980 0290
www.mydeposits.co.uk
Copies of this handbook can be purchased:
Members of ANUK
Up to 50 copies - £4.25 per copy (including P&P)
50 or more - £3.50 per copy (exclusive of P&P)
Non-members of ANUK
Up to 50 copies - £4.75 per copy (including P&P)
50 or more - £4.00 per copy (exclusive of P&P)
To order please write to: ANUK, 155/157 Woodhouse Lane, LS2 3ED;
or call: 0113 205 3404; or email: inf[email protected]
ANUK / Unipol Student Homes
155/157 Woodhouse Lane, Leeds
LS2 3ED
T: 0113 205 3404
F: 0113 234 3549
E: inf[email protected]
