In this guides and tips piece, Kerry Barber, head of Compliance at Goodlord, and Leanne McCarthy, claims facilitator at Goodlord, discuss why this month's supreme court ruling is a crucial reminder for landlords.
This month, landlords and the wider lettings industry breathed a sigh of relief as the Supreme Court made a ruling in the Trecarrell House Limited v Rouncefield case. The case has confirmed that failure to provide a gas safety certificate prior to occupancy does not prevent a landlord from serving a section 21 notice, provided the tenant was given the certificate before service of the notice.
Whilst an encouraging move for landlords, it’s a timely reminder of the difficulties and grey areas which can arise when documentation and compliance for new tenancies aren’t properly processed, particularly if a section 21 or 8 notice needs to be served.
Here are the crucial areas landlords and agents must ensure are handled and documented correctly, before any section 21 or section 8 proceedings begin:
Make sure notice was served correctly
In England, the forms used for section 21 notices (6A) or section 8 notices (form 3) must be the correct version, applicable at the time the notice is served. Both forms are available on the government website, so make sure you’re not using an old or edited version.
The amount of notice you need to provide your tenant can vary depending on the type of notice or grounds for possession you're relying on. During the pandemic, we also saw these notice periods change significantly, so you should always check the government website for the most up to date notice periods you need to provide.
And, if you intend to issue a section 21 notice, you should also understand when a notice can and can’t be served depending on the status of the tenancy, as a section 21 notice cannot be given within the first 4 months of a tenancy and it cannot expire before the end of a fixed term, unless the tenancy includes a break clause.
Make sure you follow tenancy deposit rules
You can only serve a section 21 notice if you've protected your tenants deposits in a relevant scheme (when a traditional cash deposit has been taken) within 30 days of the deposit being received. You must also have provided the tenants with the relevant information relating to the deposit protection within the same 30-day period.
While there's no specific legislation that prevents a section 8 being served where the deposit hasn’t been correctly protected, your possession claim may still be affected.
In addition, make sure you’ve followed all the legislation about tenant fees and security deposit limits. If you charge too much for the deposit, or charge your tenants any other prohibited payments, you'll need to return the amount you overcharged before you can serve a section 21 notice.
You share the right documentation with tenants
If your tenancy was granted on or after 1 October 2015, you must share a current copy of the Energy Performance Certificate (EPC) and Gas Safety Certificate (GSC) with your tenant before their tenancy begins. You should also share the GSC from any annual checks completed after they move into the property, within 28 days of the check being carried out. You must also provide your tenants with the latest version of the How to Rent Guide, and again at each renewal if a new version of the guide has been published.
As the Supreme Court case highlights, failures to provide key documentation can cause serious issues further down the line. The best evidence to overcome these challenges is to have a clear audit trail, which evidences what you provided to the tenant, on what date and by which method.
Landlords have the relevant licence
As an agent, make sure to check that your landlords have the relevant licence, even if you aren't fully managing the property. Landlords that need an HMO licence or are in a selective licensing area will need to have made an application for a licence before they can issue a section 21 notice.
Communicate with tenants
To make a claim for possession, you may need to provide information about your tenants' circumstances, including any knowledge you or the landlord have about the impact the pandemic has had on the tenant.
If you can't provide this, the court may not be able to progress your case, so it’s important that you keep a record of all the communications you have with your tenants, including mediation and payment plans where necessary.
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