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Rentify have produced this guide to tell you all about the legal rights and obligations you should be aware of as a landlord. Sure, the law is there to be upheld; but it's also there to help you. And that's what Rentify is all about too: helping landlords.
The law can be a funny, tricky beast, perfectly sensible one moment and slightly bonkers the next. Unfortunately, as the judge told me, ignorance is a poor defence. But have no fear: this guide is here to get you clued up!
Every lease is subject to implied terms, a set of legal rights and responsibilities which are unavoidably part of every tenancy agreement, even if not written down.
We'll see that these arise from a combination of common law (law developed through the judgment of cases in courts and tribunals) and/or statutes and regulations passed through parliament. Please also remember that this is just a guide and that definitive judgments on legal requirements can only be made by the relevant court or tribunal.
We understand your time is valuable. If you’re overwhelmed with managing your property, we can do it all for you through our let my property or <%= link_to 'full management services', services_manage_my_property_url %> or call us today on 033 3014 8505.
Straight away there are a few things you are required to do by law before you can let a property to a tenant.
If you have a mortgage, you will most likely be legally obliged by its terms to inform the mortgage lender when you decide to rent out the property.
Once you have asked their permission you will usually have to get 'consent for lease' from them before you can get going. Even if you have a buy-to-let mortgage there may be restrictions on the type of tenancy it permits so check up on it.
It may well also be a stipulation of your mortgage that you get the appropriate insurance (i.e. landlord insurance).
This will be a legal requirement by virtue of your contract with the lender. If there is no such stipulation or you do not have a mortgage on the property, it is worth noting that there is no legal requirement to get landlord insurance or even basic building cover.
If you are the leaseholder, make sure you get the freeholder's permission to sub-let.
There may well be a clause in your tenancy agreement requiring this. Usually it is a formality as the freeholder cannot deny permission unreasonably but if you forge ahead without it, then you may be breaking your contract with the freeholder. If they do deny permission, check over the terms of your agreement and try to sort it out amicably before resorting to any legal proceedings!
If you are changing the use of any existing property you will need to get planning approval from your local authority.
This applies if you are turning a previously singly occupied property into flats (and potentially in other scenarios to). Contact your local authority in any case: it's better to be safe than sorry
You must make sure the property is gas safe.
Before renting out a property, it must be registered as gas safe by the (aptly named) Gas Safe Register ( www.gassaferegister.com). Note that the government replaced CORGI with this lot as the official go-to gas guys in March 2009. You must also have a copy of the gas safety check handy to give to the tenant when he or she moves in. There will be more on this later for all you gas safety fans...
Any electrical equipment you plan on providing for the tenant in the property must be safe with little risk of injury or death or damage to the property.
Even though it is not a legal requirement to get wiring checked (unless you have an HMO- see below), you should do so as, if it is found to be faulty, you will be held legally responsible. Electrical equipment must be marked with the appropriate CE marking. This can be achieved by buying new electrical equipment or (less extreme) getting a qualified electrician to check it and supply a record of inspection. Keep any relevant receipts and warranties as proof that the equipment can be considered safe.
For tenancies beginning after March 1993, any upholstered furniture which you plan on providing must comply with the fire safety rules of the Furniture and Furnishings (Fire) (Safety) Regulations 1988.
The regulations are concerned with:
furniture meeting a cigarette resistance test
cover fabric meeting a match resistance test
filling materials meeting ignitability tests.
All new upholstered furniture (except mattresses and bed bases) and loose and stretch covers must be fire-retardant and carry an appropriate permanent label to show this. Second-hand furniture may conform to the regulations even if it does not have a label but in such cases it is probably best not to take the risk, unless you are certain (probably best not to try to set things alight in the shop though...)
The regulations apply to the following (if upholstered): furniture; beds, headboards and mattresses; sofas, sofa beds and futons; cushions; pillows; loose and stretch covers for furniture.
The regulations do not apply to: sleeping bags; bedclothes; loose covers for mattresses; pillowcases; curtains; carpets.
You must have an Energy Performance Certificate (EPC).
As this must be made available (for free) to prospective tenants before they even arrange a viewing, it has to be acquired before advertising the property. The EPC will show them the energy performance of the property they are considering renting. A new certificate came into use on 1 April 2012 and shows energy efficiency as well as an environmental impact rating. You need not provide an EPC only if you are renting out a single room or renting out a property room by room on separate contracts. <%= link_to 'Rentify can help you obtain an EPC for your property', landing_path %>. Once acquired it is valid for 10 years. There is no statutory need to follow any recommendations the assessor makes but it could well save you money in the long run!
As soon as you become a new landlord and start renting out your property, you must inform HM Revenue & Customs (HMRC) of the new source of income.
These are your basic nine points.
Although there is no specific requirement to have your property risk-assessed unless the local housing authority commands it, you do have legal obligations related to health and safety as a landlord.
These may fall under the following legal rulings:
The Law of Negligence
You have a legal duty to ensure your acts or omissions do not cause injury or damage to anyone whom it is reasonably foreseeable could be injured by your actions or by your failure to act. Landlords therefore owe a duty of care to their tenants (and anyone who enters onto their property). It requires you to do what is 'reasonable' to keep people safe from the consequences of your acts of omissions.
The Occupiers' Liability Acts
These translate the common law of negligence into statutory obligations. More than one person can be the Occupier so a landlord with a tenant may still be considered the occupier under certain circumstances.
The Consumer Protection Act
This covers hiring out something for any consideration other than for money so would include providing any goods as part of a tenancy agreement. Failure to comply with this may result in a criminal offence.
The Housing Act 2004 places a statutory legal duty on local authorities, not landlords, to assess tenants' risk to health and safety.
The local authority must use a system called the Housing, Health and Safety Rating System (HHSRS) to identify and assess risks. If you know the things they will be looking out for, you can take your 'reasonable' steps to reduce risk of harm to your tenants. So here are the HHSRS 's (what a mouthful) 29 hazards to be aware of:
Damp and mould growth
Asbestos and manufactured mineral fibre
Biocides (e.g. damp and timber treatment products)
Carbon monoxide and fuel combustion products
Uncombusted fuel gas
Volatile organic compounds.
Falls associated with baths
Falling on level surfaces
Falling associated with stairs and steps
Falling between levels
Flames and hot surfaces
Collision and entrapment
Position and operability of amenities
Structural collapse and failing elements
Crowding and space
Entry by intruders
Domestic hygiene, pests and refuse
Personal hygiene, sanitation and drainage
Water supply for domestic purpose
Each hazard can be assessed as either category 1 (for more serious hazards where mandatory statutory action must be taken) or category 2 (for less serious hazards where statutory action is discretionary). What action they decide to take against you depends on the authority in question but typical courses may be:
Serving notice that remedial work must be done.
Closing all or part of the dwelling with a prohibition order.
Serving a hazard awareness notice (i.e. no remedial work is done but they just tell you the hazard exists).
Demolition (try not to let it get that far!).
Good property inspection sheets which cover these issues will help you conduct a risk assessment to show you have taken 'reasonable' action to keep your tenants safe. It's imperative you record your findings. Rentify can provide you with one that's an absolute classic of the genre.
Three things to keep in mind when risk assessing are:
The HHSRS 's 29 hazards.
The likelihood of the hazard causing harm over a 12-month period (if the likelihood is high, it's a real risk).
In the worst-case scenario, how much damage or injury could the hazard cause?
Another good way to help protect yourself and your tenants is to join an accredited landlord group. Local authorities often work closely with these to make sure all landlords are sticking to their health and safety responsibilities.
An HMO is a special type of property defined in the Housing Act 2004 . For all intents and purposes a property will usually be an HMO if the occupants share facilities (e.g. bathroom, toilet, kitchen...)
A property will not be an HMO if only two individuals are living there and sharing facilities. Likewise, if no more than two individuals share it and the landlord is also resident, it will not be an HMO . If you are a landlord of an HMO , you do have certain special legal responsibilities. These come under The Management of Houses in Multiple Occupation (England) Regulations 2006 and 2007 (a belting read). Failure to comply with these is a criminal offence punishable by fines of up to £5000.
As a landlord of an HMO you have a legal obligation to do the following:
Provide the name, address and telephone number of the property manager to each household in the HMO (a 'household' is most usually a family, co-habiting couple or sole resident unrelated to the other occupants)
Take specific fire-safety measures:
Keep escape routes from fire clear.
Keep fire-safety equipment (alarms, extinguishers etc.) in working order.
By The Regulatory Reform (Fire Safety) Order 2005 you or your managing agent must carry out a fire risk assessment and take action to minimise the risk of fire.
Comprehensive guidance on fire-safety can be found here: www.rother.gov.uk/media/pdf/p/p/Lacors_Fire_Safety_Guide_July_2008.pdf
Keep the water supply and drainage clean and in working order. For example, you must cover water tanks and protect pipes from frost damage.
Have electrical equipment inspected at least once every five years and obtain a report of the inspection.
Supply a gas or electrical safety record within seven days, if requested by the council.
Keep all shared areas clean and safe.
Keep all parts of the exterior in good order and safe.
Also, keep the interior (including windows, fixtures and fittings, and ventilation) in good working order and safe.
Provide for the regular disposal of refuse and litter.
But tenants of HMO s also have legal obligations under the same set of regulations, equally punishable by a fine of up to £5000. They must:
Allow you reasonable access and not obstruct you in completing your duties.
Inform you of anything necessary to enable you to complete your duties.
Act in a reasonable way so as not to damage anything it is your duty to provide.
Follow the refuse guidelines you have implemented.
Follow your fire-safety guidelines.
Some HMO s will legally require a license to prove that the property - and landlord! - as well as the way it is managed, all come up to scratch. A license is compulsory if the property is higher than three stories and has five or more occupants from two or more households.
Local authorities can require other types of HMO s to be licensed if:
management problems have been identified (known as Additional licensing )
the property is an in an area with low housing demand or suffers from anti-social behaviour (known as Selective licensing ).
The conditions of the license will depend on the local authority in question. If a landlord does not acquire the necessary license or allows more occupants than the license grants, it will be a criminal offence with a possible fine of up to £20,000. If you break other conditions of the license, fines of up to £5,000 can be issued.
For more information about HMO licensing please go to: www.rentify.com/howtoguide/1/hmo_licencing
For more information about selective licensing please go to: www.rentify.com/howtoguide/1/hmo_selective
As we have touched on above, you have a legal obligation to make sure the property is in a safe state of repair.
If someone is injured or has an accident on your property because of its poor condition, you could be held liable for damages for personal injury. Furthermore, Section 11 of the Landlord and Tenant Act 1985 imposes obligations into all tenancy agreements for tenancies for a fixed term seven years or less.
Please also remember, scaremongering is not the game here! Most tenants are nice and civilized and should help point out any potential problems so you can sort them out (if it is your responsibility) before they go throwing themselves down the stairs at the sight of a loose banister...
Even if there is no obvious or immediate danger, your tenant has the basic right to live in a home in good repair. Likewise, you also have the right to have your property looked after properly by the tenant.
The responsibilities of the landlord are generally as follows (unless the tenancy is for a fixed term longer than seven years):
To keep the structure and exterior of the property in good repair. This generally includes: walls, windows, drains, gutters, roof, foundations, paths and steps leading to the house, and external pipes.
To keep in proper working order the water, gas, electricity and sanitation (e.g. basins, sinks, baths, toilets and drains).
To make sure any heating system provided is in good working order.
For tenancies that started on or after 15 January 1989, these repair obligations extend to any common parts of the building, if applicable (e.g. hallways and stairwells).
If any of these things fall into disrepair (i.e. are damaged to the extent they must be repaired), you have an obligation as landlord to fix or repair them.
But you cannot be forced to carry out repairs if the damage has been caused by the tenant. And if you do the repairs, you can claim the cost back from the tenant. Only the immediate problem needs to be fixed. For example, you may only need to patch up a leaking gutter rather than replace the whole thing.
Any repairs must be carried out within a reasonable time-frame and tenant's rights must be taken into account when the repair is carried out (so make sure you are all on the same page regarding any potential disruption).
Further to all of this, under common law you must make sure the property is Fundamentally fit to live in. Some good words and phrases which may suggest it is not fit to live in are: infected, infested, unsafe, defective drainage/sewerage, poor water supply etc. It should be pretty clear!
If you fail to carry out these obligations, the tenant may be able to sue for compensation.
The responsibilities of the tenant are generally as follows:
To keep the property in good repair.
To maintain any of his or her own electrical goods.
To give sufficient access to the landlord for repairs to be carried out.
To give the landlord notice of anything that has fallen into disrepair. You cannot be held responsible for not carrying out a repair on something you did not know was in disrepair.
In order to be able to make a claim against the tenant for damage to the property you must have:
A clear and detailed inventory of 'before' and 'after'.
Done your check on the property while the tenant was there or as soon as they left (if you leave it for some weeks the tenant could challenge their culpability).
Proof the damage is not just 'fair wear and tear'.
If work needs to be done, you are also legally bound by the Defective Premises Act 1972 and have a duty of care to make sure the work is done professionally and leaves the property fit to live in upon completion
Hopefully most cases related to any of these obligations will be reasonably clear, or at least you will be able to sort them out with the tenant through discussion. Try to cover any potential issues as thoroughly as possible in the tenancy agreement.
If you can't come to an agreement about a maintenance issue, it is worth considering negotiation or mediation as a way to sort it out before going to court. Speak to a solicitor or Citizens Advice for guidance on this for any specific cases that arise.
You may end up having to take the matter to court if you cannot agree on who caused the damage and/or whose obligation it is to repair it. Provided the tenant is at fault and in extreme cases, as a landlord you can use the courts in order to:
make the tenant carry out the repairs.
sue the tenant for damages to carry out the repairs.
evict the tenant.
But watch out! If the courts decide it is your fault, they could come down on you like a ton of bricks (e.g. in a case where a ton of bricks fell off the outside of your property). They could impose a number of things on you:
Pay the tenant damages.
Make you comply with repairing obligations through a court order.
Issue you with an injunction from taking a certain course of action.
Finally, if you do not carry out the repairs or are too slow in doing them, the tenant has the right to do them and have the cost deducted from their rent. The tenant must, however, follow very specific guidelines to do this. They'll need to inform you at a number of stages of how the process is developing so you'll be able to contact them to resolve the problems in another way, if you so wish.
Any building work you wish to carry out is subject to either Building Regulation approval (for major works or a change of use of the property i.e. into a flat or flats) or Building Notice Procedure (usually for small- scale works that need to take place quickly). Consult a reputable building contractor if you are unsure which procedure to use.
Building Regulation approval (also known as 'Full Plans Application') requires the work to be pre-approved by the Building Control Service.
A Building Notice procedure requires the contractor to inform the Building Control Service that work is about to start and an inspector will check them as they progress to advise on any potential lack of compliance with Building Regulations.
Landlords are required by The Gas Safety (Installation and Use) Regulations 1998 to have an annual gas safety check performed by a tradesperson registered with the Gas Safety Register (again, CORGI is no longer the official gas registration board).
These regulations do not apply to:
gas appliances owned by the tenant
leases for a fixed term longer than 7 years.
The danger of defective gas appliances cannot be overstated and culpable landlords could be subject to legal action. Tenants must inform you of any defects they notice and they should be aware of this responsibility so put it in the tenancy agreement.
There is no statutory requirement for any electrical safety checks (except for HMO s). Still, remember that you must take reasonable steps to make sure the property is safe and that under Section 11 of the Landlord and Tenant Act 1985 , you must keep electrics in good working order. Thus you could be culpable if something goes wrong. Steps you may wish to take to avoid legal issues include:
Get a check done periodically anyway.
Keep records of checks.
Don't buy second hand electrical equipment.
This is a right implied by common law and generally means that you do not have the right as landlord to turn up to check on a property (and/or tenant!) without giving prior notice.
If you foresee this being a problem in any way, you can use the tenancy agreement to:
make the right to quiet enjoyment conditional on the tenant fulfilling their own obligations or
define more strictly in writing what the right actually entails, so long as it is reasonable.
Where you are bound by repairs and maintenance under Section 11 , you do have a right to enter the property to inspect it at reasonable times, after giving at least 24 hours' notice. If the tenant reasonably wishes to rearrange it, try to come to an agreement. But if the tenant consistently refuses you access to check on repairs, you may be able to claim compensation if damage is eventually caused to the property.
At the other end of the scale from quiet enjoyment is harassment.
This certainly sounds very dramatic and you may reasonably think you would never fall foul of the Protection from Harassment Act 1997 or the Protection from Eviction Act 1977 . In fact a number of actions fall under the umbrella of harassment (not an actual umbrella). In all seriousness, it's a criminal offence and should be taken seriously.
Acts of harassment include:
Any deliberately disruptive repairs.
Frequent visits, at unreasonable hours.
Entering the property without permission.
Threats of violence or unlawful eviction.
Disconnecting the gas, electricity or water supply.
Anything intended to disturb the comfort of the tenant.
Anything done by a landlord who knows his or her actions may cause the tenant to leave or not pursue their legal rights.
If you receive word from you local authority alleging harassment, make sure you deal carefully with the tenant and keep notes from your conversations and meetings. Seek immediate advice from a solicitor experienced in landlord and tenant law.
If convicted you may face:
a fine of up to £5,000
a prison sentence
an injunction to reinstate the tenant in the property and to pay possible damages.
Our old friend the Housing Act 2004 states that landlords must take reasonable action to prevent and limit anti-social behaviour, whether the tenant is the source of the trouble or the victim of it.
ASB may take the form of noise, violence or illegal drug abuse among other things. Make sure you have provisions for it in your tenancy agreement and take the time to do thorough background checks on potential tenants. If your tenant is suffering because of ASB from a neighbour, you also have a responsibility to help them.
If you judge the situation to be safe, talk to the perpetrator or suggest mediation.
In cases of noise contact the Environmental Health Department, who may be able to prosecute and/or seize any offending equipment.
In cases of violence or drugs contact the local anti-social behaviour team or the police.
You may be able to obtain:
Closure Orders on the property. This does not end the tenancy but should give you time to terminate it yourself through the legal methods.
Eviction of the offenders.
Tenants renting an entire property are free to smoke where they like in the property. Tenants of individually let rooms can only legally smoke in their rooms (with the door closed) and not in public areas. There must be clear no-smoking signs in these areas.
If you do not wish to allow tenants who are smokers, the easiest thing is to make it clear when advertising the property and vet them at the application stage.
You may wish to insert a clause in the tenancy agreement saying tenants can only smoke with your written permission (which cannot be reasonably withheld). Potential damage to the property may well be a reasonable enough reason to withhold permission.
Roughly one quarter of the adult UK population are smokers so this is a potentially big market to consider. If you are still wary, ask smokers to pay a slightly higher deposit or premium rent to cover the cost of redecorating later
A blanket ban on pets would not be allowed by the Unfair Terms in Consumer Contracts Regulations 1999 .
As with smokers, consider a clause requiring your permission to have pets. Again this cannot be reasonably withheld but potential damage, allergies or a ban on pets in the agreement with any freeholder may all be considered reasonable.
Guide dogs, hearing dogs, and dogs for disabled people must be permitted by law in your property. If you do not allow them, you'll be committing an act of discrimination under the Disability Discrimination Act 2005 .
If you take a deposit from the tenant, as is generally advisable, it must by law be held in an approved statutory deposit protection scheme.
This was introduced by the government in the Housing Act 2004 . It safeguards all deposits taken under an AST after 6 April 2007 or any AST that has been renewed since that date. This includes any statutory periodic tenancies created when a fixed period tenancy has ended but the tenant remains in the property. No other types are covered (including assured tenancies).
There are two different types of scheme: an Insurance Based Scheme and a Custodial Scheme.
In both cases, the tenant pays the deposit to the landlord, who pays it into the chosen scheme, and the landlord must inform the tenant of the details of the scheme.
Insurance based schemes
The landlord holds the deposit but must pay a fee for the premium.
Any disputed amount at the end of a tenancy must be paid to the scheme by the landlord. The scheme then pays out the amount based on the ADR or court decision.
If the landlord does not pay (or pay enough) when requested, the scheme can claim on the insurance and so still pay the tenant his or her due.
If there is no dispute, tenants will often get the money back more quickly with this scheme as the landlord can pay them directly instead of waiting for the custodial scheme to refund the money
The scheme administrators hold the deposit but there is no fee as charges are paid by the interest on the deposit.
The deposit must be paid into the scheme within 30 days of receipt from the tenant.
Custodial schemes are often used by smaller landlords.
The scheme pays back the money and the tenant will also receive a proportion of the accumulated interest.
The government has selected three service providers to run Tenancy Deposit Protection Schemes:
The Deposit Protection Service (the DPS )
Insurance Based Protection Schemes
My Deposits (Run by Tenancy Deposit Solutions Ltd)
The Tenancy Deposit Scheme (Run by The Dispute Service)
Both types of Tenancy Deposit Protection Scheme have a service which deals with any deposit disputes, to avoid such matters going to court. This is the Alternative Dispute Resolution Service ( ADR ) and can only be used if both landlord and tenant agree to it.
The legal procedures for terminating a tenancy agreement are addressed in A Landlord's Guide to Contracts . This guide will deal with the legal procedures for acquiring repossession of the property, if the tenant has still not left the property after the expiration of any legitimate notice orders given by you or the courts.
A possession order from the courts is required before a tenant must legally leave the property. You can make an application to the courts only if you have supplied the tenant with a legitimate Section 21 or Section 8 notice and they have refused to comply before its expiration date.
Only a landlord or his or her solicitor may sign court papers to initiate court proceedings. The letting agent cannot. It is very important that all papers are filled out correctly and correct procedures followed.
There is a standard procedure and an accelerated procedure for acquiring an order.
As its name suggests the accelerated procedure is quicker. Also it does not usually require a court hearing. You can only use it if you have issued a legitimate Section 21 notice: This is available only under an AST and allows you to gain possession of a property at the end of a fixed term period without supplying a reason.
Proof you have an AST.
A written tenancy agreement.
Proof you gave the tenant the necessary notice.
Proof that you issued a Section 21 notice asking the tenant to leave at the end of a fixed term tenancy.
Once you have supplied this, the judge will give the tenant 14 days to challenge it. A decision will then be made either to:
grant the possession order (the usual outcome)
or hold a court hearing (this only usually happens if a major issue is raised or you have not issued the correct paperwork).
If you cannot fulfil the requirements for an accelerated procedure, you must initiate court proceedings using the standard procedure. A court hearing will be held, usually at least one month from the initiation of proceedings.
If you issued a Section 8 notice, you must use the standard procedure. And remember: this can only be used if the Section 8 notice has expired and the tenant has refused to comply.
|Accelerated Procedure||Standard Procedure|
|AST s only||Assured tenancies or AST s|
|When a Section 21 notice has been ignored by the tenant||When a Section 8 notice has been ignored by the tenant|
|No court hearing (usually)||Court hearing|
If all the proper procedures have been followed and the tenant does not show up to court, the judge will very likely grant the possession order. But the flipside to this is - you guessed it - if you're a no-show, the judge will probably allow the tenant to remain in the property.
Providing that both parties come to the court hearing, the result could take a number of different forms:
The case is thrown out. The tenant can stay until another opportunity to legally repossess the property arrives. The most likely cause for this is that you haven't followed the correct procedures.
The case is adjourned (if the judge cannot come to a decision).
The judge grants an outright possession order (also known as an absolute order). The tenant must leave before the date given in the order (usually 2-4 weeks).
The judge grants a suspended possession order. The tenant can stay in the property as long as they comply with the conditions of the order (this is usually used in cases of rent arrears where the tenant shows a willingness or capability to make up what they owe).
The judge orders the tenant to pay a money order, usually the amount owed to you in rent arrears. This money order can also be tagged on to a possession order to cover your legal costs, for example.
If a tenant refuses to leave by the date given in the possession order, a warrant for eviction must be obtained from the court, using Form N325: Request for Warrant of Possession of Land .
If everything is in order, the tenant will be served and the court will book a time for the bailiff to evict the tenant. You should attend the eviction so that the property can be handed over to you (you may wish to change the locks immediately...)
If you try to evict a tenant yourself, you will be committing a criminal offence under the Protection from Eviction Act 1977 and you could go to prison. Even if you have a court order, you yourself cannot evict anyone. Eviction is a matter for the courts and court-appointed bailiffs only. This rule will generally apply to license agreements too, which many landlords do not realise.