The Deregulation Act contains some worrying aspects for buy to let property landlords. Sections 33 to 36 of the Act came into force on 1st October 2015 and applied to Assured Shorthold Tenancies (ASTs) created after that date. With effect from 1st October 2018, these provisions apply to all tenancies regardless of when created.
Straightforward termination being eroded
The AST was created by the Housing Act 1988 to provide flexibility in lettings of property. It enables premises to be let for usually 6 to 12 months in the knowledge there is a relatively quick and simple procedure by which to recover possession. Over recent years that straightforward termination process by means of serving a Section 21 Notice giving the tenant two months to leave has been steadily eroded.
The initial inroads were made by the complex requirements of the Tenancy Deposit Protection Legislation which are adjusted at frequent intervals and still trip up the unwary. Non compliance with the Deposit Protection requirements prevents service of a Section 21 Notice.
Concerns for buy to let landlords
The Deregulation Act contains some further worrying aspects if you have a buy to let property.
The more unscrupulous tenant will, as things stand, remain in the property until an eviction date has been obtained, often paying no rent. The eviction process even using the accelerated procedure takes two to four months depending on the circumstances.
From October 2015, a landlord will no longer be able to serve a Section 21 Notice at the start of the tenancy requiring the tenant to leave at the end. The earliest a Section 21 Notice can now be served under the new provisions is four months into the tenancy.
Another concern is the retaliatory or revenge eviction provisions. If a tenant makes a written complaint to the landlord about the state of repair of the property before a Section 21 Notice is served and the landlord either fails to respond within 14 days indicating how the complaint is to be addressed or gives an inadequate response, the tenant can contact the local council. The council may then choose to serve a Hazard Notice which will invalidate the Section 21 Notice. There are some exceptions, for example where the tenant is in breach of duty to use the property in a tenant-like manner, or the property is genuinely on the market for sale.
If a tenant cannot contact the landlord by post or email, then the requirement for a written complaint is waived. It is therefore important that the landlord provides the tenant with a current postal address for service of Notices.
The more unscrupulous tenant may use this complaints procedure as a tactic to delay eviction by making the complaint before the initial four months of the term expires with the intention of delaying the eviction process.
Once a Hazard Notice is served, the landlord cannot serve a Section 21 Notice until six months after the date of the Hazard Notice.
If the tenant is not provided with a copy of the current gas safety certificate for any gas appliances before taking up occupation a Section 21 Notice cannot be served and on present case law this defect is incapable of remedy.
The tenant must also have received the government’s How to Rent Booklet and the Energy Performance Certificate before a Section 21 Notice can be served.
By Sarah Payne, Litigation Solicitor at Cambridge solicitors Barr Ellison. Contact Sarah on 01223 417200.
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
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