Can a landlord refuse to accept early surrender of a tenancy?

Where a tenant expresses a wish to leave during a fixed term or vacate without giving the notice defined in the tenancy agreement, this is an offer to surrender. A landlord may accept or refuse such an offer.


Surrender by operation of law


An agreement by the landlord and the tenant that the tenancy shall be put an end to, acted upon by the tenant leaving the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law. Phene v Popplewell (1862) 12 C.B.N.S. 334.] The giving and taking of possession must be unequivocal.


Acceptance of keys


Acceptance of the keys by the landlord is not in itself necessarily a surrender; it depends why the keys were accepted.


Acceptance of keys in lieu of notice


In Laine v Cadwallader (2001) 33 H.L.R. 36 the tenant was required to give at least four weeks notice to quit. The act of putting the keys through the landlord’s letterbox amounted to an offer by the tenant to surrender the tenancy early, which the landlord by implication accepted as the required notice commencing on that day. The landlord was therefore entitled to recover rent equivalent to that four week notice period.

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What the Electrical Equipment (Safety) Regulations 2016 mean for landlords

The Electrical Equipment (Safety) Regulations 2016 were enacted on 8 December 2016 and impose statutory duties on distributors of electrical equipment. Landlords who supply electrical equipment to tenants for their use are, consistent with the definition in the regulations, considered to be distributors. The regulations tighten the Electrical Equipment (Safety) Regulations 1994.


What equipment is covered by the regulations?


Electrical equipment for use with a voltage rating of between 50 and 1000V for alternating current and between 75 and 1500V for direct current.


What must a landlord do?


Before making electrical equipment available, the landlord must verify the electrical equipment:


(i)bears the CE marking
(ii)is accompanied by required documents*
(iii)is accompanied by instructions and safety information in English


In addition the landlord must verify that the manufacturer has complied with the requirements of regulation 8 (labelling of electrical equipment) and verify that the importer has complied with the requirements of regulation 18 (information identifying importer).


* required documents means the documents that the manufacturer or importer is required to provide with the electrical equipment pursuant to regulations 8,9,18 & 19 summarised below:


Regulation 8


Before placing electrical equipment on the market, a manufacturer must ensure that it bears a type, batch or serial number or other element allowing its identification and ensure that it is marked with the name, registered trade name or registered trade mark of the manufacturer and a single postal address at which the manufacturer can be contacted.


Regulation 9


When placing electrical equipment on the market, a manufacturer must ensure that it is accompanied by instructions and safety information in English. Such instructions and safety information must be clear, understandable and intelligible.


Regulation 18


Before placing electrical equipment on the market, an importer must indicate on the electrical equipment the name, registered trade name or registered trade mark of the importer and a postal address at which the importer can be contacted.


Where it is not possible to indicate the information specified on the electrical equipment, the importer must indicate that information on the packaging or in a document accompanying the electrical equipment.


Regulation 19


When placing electrical equipment on the market, an importer must ensure that it is accompanied by instructions and safety information in English.

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Small Business, Enterprise and Employment Act 2015 and home businesses

Home businesses are now common but until recently giving a tenant consent to operate a business from their rented home was tricky because the landlord did not want to inadvertently give the tenant a business tenancy that could be caught by Part 2 of the Landlord and Tenant Act 1954. A tenancy under those provisions can – in certain circumstances – give a tenant a right to a renewal tenancy upon expiry of their term, effectively giving a tenancy for life.


On 1 October 2015, the Small Business, Enterprise and Employment Act 2015 was enacted and helps landlords and tenants overcome this problem.


Home business tenancy


Section 35 of the Small Business, Enterprise and Employment Act 2015 essentially allows a landlord to grant a “home business tenancy” and such a tenancy is specifically excluded from any protection under Part 2 Landlord and Tenant Act 1954. This applies to any new home business tenancy granted from the 1 October 2015 in England and Wales except:


• a tenancy which is entered into before 1 October 2015
• a tenancy which is entered into on or after 1 October 2015, pursuant to a contract made before that day; or
• a periodic tenancy which arises at the end of the term where the original tenancy was before 1 October 2015 (where the tenancy is an assured shorthold tenancy).


If a tenancy meets the following conditions, it will be regarded as a “home business tenancy” for the purposes of the legislation:


• a dwelling-house is let as a separate dwelling,
• the tenant or, where there are joint tenants, each of them, is an individual, and
• the terms of the tenancy—
• require the tenant or, where there are joint tenants, at least one of them, to occupy the dwelling-house as a home (whether or not as that individual’s only or principal home),
• permit a home business to be carried on in the dwelling-house, or permit the immediate landlord to give consent for a home business to be carried on in the dwelling-house (whether that be a particular home business, a particular description of home business or any home business), and
• do not permit a business other than a home business to be carried on in the dwelling-house.


What is a home business?


A “home business” is defined as:


a business of a kind which might reasonably be carried on at home.


But, a business is not to be treated as a home business if it involves the supply of alcohol for consumption on licensed premises which form all or part of the dwelling-house.


There are provisions allowing regulations to be made prescribing cases in which businesses are, or are not, to be treated as home businesses. However, at the time of writing there doesn’t appear to have been any regulations made.
Our thoughts as to what businesses could “reasonably be carried on at home” might include:


• Web designer
• Accountant
• Financial advisor


Businesses which might not be suitable could include:


• Dentist
• Mechanic


Let as a separate dwelling


Section 36(2) specifically provides that where a home business tenancy is let as a separate dwelling, that is “let as a separate dwelling” for the purposes of an assured or assured shorthold tenancy. What this effectively means is that an “assured shorthold tenancy” can also be a “home business tenancy”. They are effectively the same thing if the tenancy contains the terms mentioned earlier.


Mixed use


A dwelling-house which is let for mixed residential and business use is capable of being let as a dwelling for the purposes of the legislation.


If, a dwelling-house is let together with other land, then, the following applies –


• if the main purpose of the letting is the provision of a home for the tenant, the other land is to be treated as part of the dwelling-house, and
• if the main purpose of the letting is not as a home, the tenancy is to be treated as not being one under which a dwelling-house is let as a separate dwelling.

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How much time does a landlord have to carry out a repair?

Firstly, we should remind ourselves why a landlord should carry out repairs:


• Meet implied obligations (law)
• Meet express obligations (tenancy agreement)
• Preserve the landlord’s asset
• Keep the tenant happy (a happy tenant is a good tenant)


The longer a landlord takes to carry out a repair the more likely they are to breach their legal and contractual obligations, the more likely further damage will occur and the more likely the tenant will be unhappy.


Law


In O’Brien v Robinson, ante, per Lord Diplock; Calabar Properties v Stitcher [1984] 1 W.L.R. 287, per Griffiths L.J is was stated that the landlord is not liable for breach of covenant as soon as the premises are in fact out of repair. Until the landlord has notice of the disrepair no breach arises; nor does any breach arise thereafter if the landlord then carries out the necessary work of repair with reasonable expedition.


However, it is possible for a landlord to be in breach of the duty of care imposed on him by Section 4 of the Defective Premises Act 1972, notwithstanding that no notice of the defect has been given by the tenant and notwithstanding that the landlord did not actually know of the defect. This is because it is provided that the duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect. (Defective Premises Act 1972, s.4(2).)


Once the landlord has received notice of the disrepair, the repair must then be done within a reasonable time. ‘Reasonable time’ will be judged by several factors including the type and extent of the disrepair and the nature of the tenancy. Naturally, the bigger and more expensive the repair necessary, the longer the time that could reasonably be expected to carry out the repair. Note, however, that where the disrepair is an emergency (e.g. where the fault is a leaking or broken pipe or a total electrical failure) then ‘reasonable time’ may be very short indeed regardless of any other considerations. Even where it is something less urgent, such as missing roof tiles, the landlord should use reasonable expedience and a delay of a week or two should be achievable. Where the disrepair involves structural works, these might often take more time to arrange and co-ordinate and the landlord would be justified in a longer delay.


In Morris v Liverpool City Council [1988] 1 E.G.L.R. 47, CA the claim that at the landlord had delayed unreasonably in failing to repair a door for six days failed.


The nature of the occupancy or tenancy might also be a factor – in Taylor v Kowsley BC, 1985(10), a local authority tenant was awarded £100 for absence of hot water and a central ceiling light for five months. The court noted that the tenant was a young man in his 20s and implied that its decision might have been different in a case of a woman with a young family.


In Collins v NI Housing Executive (1987) (11), a housing estate was provided with hot water and heating services through a central system. Most repairs were attended to within 24 to 48 hours. Modest damages were awarded against the landlord for a delay of four weeks in attending to a single defective radiator.


In Lloyd v Rees (12), a landlord was informed of defects in a flat which included severe damp penetration which caused damage to the plasterwork. The court held that two months was a reasonable time to carry out re-plastering work to the affected areas.


Secure Tenants in Local Authority Property


Where the tenant is a secure tenant, and the landlord is a local housing authority, the tenant has a right to have specified repairs carried out within a period laid down by statutory instrument (see table below). The period begins to run when the landlord has knowledge of the need for the repair. If the landlord does not carry out repairs within that time, the tenant is entitled to compensation at a daily rate, subject to a minimum of £50. (Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994 (S.I. 1994/133) amended by the Secure Tenants of Local Housing Authorities (Right to Repair) (Amendment) Regulations 1994
(S.I. 1994/844)
).


Defect – Prescribed Period in Working Days


Total loss of electric power – 1
Partial loss of electric power – 3
Unsafe power or lighting socket, or electrical fitting – 1
Total loss of water supply – 1
Partial loss of water supply – 3
Total or partial loss of gas supply – 1
Blocked flue to open fire or boiler – 1
Total or partial loss of space or water heating between 31st October and 1st May – 1
Total or partial loss of space or water heating between 30th April and 1st November – 3
Blocked or leaking foul drain, soil stack, or (where there is no other working toilet in the dwelling-house) toilet pan – 1
Toilet not flushing (where there is no other working toilet in the dwelling-house) – 1
Blocked sink, bath or basin – 3
Tap which cannot be turned – 3
Leaking from water or heating pipe, tank or cistern – 1
Leaking roof – 7
Insecure external window, door or lock – 1
Loose or detached bannister or hand rail – 3
Rotten timber flooring or stair tread – 3
Door entryphone not working – 7
Mechanical extractor fan in internal kitchen or bathroom not working – 7


London Rental Standard


Introduced in 2013 the London Rental Standard (LRS) was the Mayor of London’s campaign to improve private renting and promote good standards. Open to landlords and agents, it allows those that sign up to use the LRS badge, which is instantly recognisable across London as a mark for quality.


The LRS defines response times for emergency and urgent repairs:


• Emergency repairs: these should be dealt with or made safe as soon as practically possible and normally on the same day that a landlord is notified. Emergency repairs are defined as any defect where there is a risk of danger to the health, safety and security of the tenant or a third party on the premises, or that affects the structure of the building adversely.
• Urgent repairs: wherever possible these should be dealt with within three working days of a landlord being notified.


Deregulation Act 2015


Sections 33 and 34 of the Deregulation Act 2015 includes provisions for “preventing retaliatory eviction”. In summary, the regulations prevent a section 21 (no fault two months’ notice) from being served (or render a section 21 invalid) in certain circumstances relating to Housing Health and Safety Rating System (HHSRS) hazards in a property. The HHSRS is basically a means by which a local authority may inspect any residential premises (including owner occupied) and identify hazards that might be prejudicial to a person’s health or safety (there are 29 hazards in total). A section 21 notice served in England will be invalid and any possession claim struck out where a number of conditions apply two of which are:


1. before the section 21 notice was given, the tenant made a complaint in writing to the landlord (or to the landlord’s agent 5) regarding the condition of the dwelling-house.


And


2. at the time of the complaint, the landlord
• did not provide a response to the complaint within 14 days, or
• provided a response to the complaint that was not an adequate response, or
• gave a section 21 notice in relation to the dwelling-house following the complaint.


Three other conditions must apply for the section 21 to be invalid. What does this have to do with repair times? If the tenant makes a complaint about a hazard that is prejudicial to a person’s health and safety and this warrants a repair, the landlord has just 14 days to provide an adequate response.


Jungle Property Standard


We aim to satisfy all repair requests as quickly as is possible. Under normal circumstances the following repairs completion performance standards will be achieved:


• Priority One – Emergency Repairs: repairs required in order to avoid anything which might be, or might reasonably be expected to become a hazard or danger to life or limb or to the fabric of the property itself – within 24 hours of report of defect. In circumstances where this is not practicable, we will make best temporary arrangements.
• Priority Two – Urgent Repairs: repairs to defects which affect your enjoyment of the property – within five working days of report of defect.
• Priority Three – Non-Urgent Repairs: repairs not falling within the above categories – within 28 working days of report of defect.

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Should landlords exclude insurable risks such as fire from the tenant’s liability?

Tenancy Agreements often include terms such as ‘The tenant shall make good all damage and breakages to the property and its contents that may occur during the term, that are the responsibility of the tenant (with the exception of fair wear and tear and accidental damage by fire).


The part in question here is the ‘with the exception of…accidental damage by fire‘.


Firstly, the term is taken directly from the Office of Fair Trading guidance on unfair terms in tenancy agreements, now embodied within the Consumer Rights Act 2015.All terms must be “fair” to be enforceable and the fact that the term is shown in the guidance as being “fair” therefore suggests it is enforceable. It may not however be a fair term if “accidental” were removed because by its very nature there must be no negligence.


Going back to the original question, should the term ‘accidental damage by fire ‘ be removed from the Tenancy Agreement?


It makes no sense to remove it. Insurance is a contract for indemnity. If a landlord makes the tenant responsible but do not exclude from the tenant’s responsibility damage by an insured risk, then the insurance company may decline to pay out on the grounds that the primary liability lies with the tenant and only pay up when payment cannot be extracted from the tenant. You could of course make the tenant liable for insurance, but that is unwise in the case of short-term residential lettings. Apart from being risky, there are practical limitations such as insurance may not be available for short periods and the landlord would need to cover void periods.


One final question then… what about replacing ‘accidental damage by fire’ with ‘insurable risk’ as a catchall?


The pitfall of doing this is that you would have to supply full details of the insurance policy with the Tenancy Agreement – If the tenant does not know exactly what’s insured in advance, the term would be unenforceable.


The terms that the Office of Fair Trading suggest are fair (and therefore enforceable) are:


Incorporation of insurance provisions
Details of the landlord’s insurance are provided with this agreement. The tenant shall not do or permit to be done in or about the property any act or thing which may render void or invalidate the insurance of the property or the building against fire or otherwise increase the ordinary premium for the insurance.


Transfer of risk
The tenant shall make good all damage and breakages to the property and its contents that may occur during the term, that are the responsibility of the tenant (with the exception of fair wear and tear and accidental damage by fire).

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How long should I wait before starting the single claim process?

The question relates to the release of a deposit from the Deposit Protection Service (DPS)…


There is no time limit to wait contained in the Housing Act 2004 once a repayment request has been made so it will be a case of common sense. Clearly you need to give sufficient time for the tenant to respond because if they respond then it will follow the usual procedure (agreement or dispute).


If the tenant fails to respond within a reasonable time (we suggest around 14 days), then they will become absent or un-cooperative.


Absent or un-cooperative tenant


If the tenant is un-cooperative and fails to respond, then the procedures as laid out in Schedule 10, Housing Act 2004 take effect which allows for a single claim to be made.


Are there any pre-requisites for a single claim to be made?


A single claim process may be made if:


•at least 14 days have elapsed since the day on which the tenancy ended;
•the landlord and tenant have not reached an agreement with respect to the amount of deposit claimed; and
•the landlord believes that he is entitled to be paid the amount claimed and that the amount claimed is one of the following:


•unpaid rent or any other sum due under the terms of the tenancy; or
•damage to the premises subject to the tenancy, or
•loss of or damage to property on those premises
and none of the above may include damage caused by fair wear and tear.


If you need more information on the single claims process, contact a lettings specialist such as Jungle Property, details here

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How long does a Section 21 notice last?

Tenancies granted before 1 October 2015


Where a tenancy is granted in England on or before 1 October 2015, Section 21 Housing Act 1988 contains no time limit as to when a section 21 notice may be acted upon once expired. Therefore, once served, a possession order may be obtained any time after it’s expiry unless it has been withdrawn or a new tenancy has been granted since the notice was served. This can be compared with a section 8 notice (normally used for rent arrears) which has a 12 month lifetime before a new one would need serving [section 8(3)(c) Housing Act 1988].


It would be wise for a landlord wishing to act on a notice some time after expiry (for example a year after expiry) to write to the tenant as it might be quite a shock if the first thing they heard was a court letter.


Tenancies granted on or after 1 October 2015 (or all AST’s from 1 October 2018)


For all tenancies granted in England on or after 1 October 2015 including a renewal, section 21 Housing Act 1988 is amended substantially and a new ‘use it or loose it’ provision is introduced.


Where the rent payable is weekly, monthly or two monthly, court proceedings for possession may not be begun after the end of six months from the date on which the notice was given.


Where the rent payable is greater than 2 monthly (such as quarterly, six monthly or annually), proceedings for possession must not be begun after the end of four months from the date given in the notice for expiry (the date possession is required under the notice).


From 1 October 2018, the ‘use it or loose it’ provision will apply to ALL assured shorthold tenancies in England including any that were granted before 1 October 2015 (or went statutory periodic).

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If a tenant abandons a property does the landlord become liable for the utility bills?

Paragraph 3(1) of Schedule 6 to the Electricity Act 1989 makes a deemed contract between the electricity company and the owner of the premises the moment the premises become unoccupied:


3.— (1) Where an electricity supplier supplies electricity to any premises otherwise than in pursuance of a contract, the supplier shall be deemed to have contracted with the occupier (or the owner if the premises are unoccupied) for the supply of electricity as from the time (“the relevant time”) when he began so to supply electricity.


Therefore, from the moment the property is unoccupied, there is a deemed contract between the owner and the supplier. The same principle applies between the occupier and supplier the moment the property is occupied.


There are similar provisions for gas.

If the landlord and owner are one and the same, then yes the landlord is liable.

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What permission do you need before letting a property?

Before letting a property, you may need to obtain permission as follows:


Council
if you are changing the use of a residential property from family use to a House of Multiple Occupation (HMO) as defined in the Housing Act 2004, then you may need planning permission from the local council.


If a landlord lets a property without the required planning consent, then the council may seek enforcement action against the landlord.


Freeholder/Head Landlord
If the property is owned leasehold, the lease will contain a clause that you must get the freeholder’s permission before you assign, transfer or part with or share possession of the property. This will typically be by way of a Deed of Covenant with the freeholder. The lease may have restrictions such as no students, no housing benefit claimants or no children. There is usually a small fee due for granting such permission.


If a landlord lets a property and then later seeks permission, they will have already breached their lease. This breach is what is known as a ‘once and for all’ breach and the freeholder can take legal proceedings against the landlord.


Housing Association
If any housing association or other body which has an interest in the property you will need to obtain their permission before you let the property e.g. a shared ownership property


Insurer
You must confirm that insurance cover will be maintained if the property is let. In particular it is important that the public liability element covers any loss or injury occurring at the property, which might be sustained by the tenant or visitors during the tenancy, for which the landlord could be liable. Ensure that the tenancy application process is thorough as some insurers may not cover certain risks e.g. tenant previously convicted of arson.


The implications of a landlord not informing the insurer they are letting the property can have serious consequences if the landlord needed to make a claim against the policy e.g. Fire or flood


Joint Owners
If the property is owned by more than one person, all joint owners must give consent to let the property. Each joint owner is “seised of the whole”. That means that each joint owner is entitled to possession of the whole. “Possession” must be interpreted in its widest sense and accordingly each joint owner is entitled to occupy or let the whole. Since each joint owner has the same entitlement it follows that all joint owners must give consent to let the property and are entitled to a share of the rent.


If the term is to exceed three years, no legal estate will be granted by a lease executed by less than all the joint owners.


Mortgage Company
If a loan or mortgage is secured against the property it will be a term of the loan or mortgage agreement that you get the lender’s permission before you let the property. For some buy-to-let mortgages permission to rent the property may be automatic, but there may be conditions attached such as the type of tenancy, length of tenancy or a requirement to serve notice at the start of tenancy.


You may also need permission from any lender if you want to let rooms in the property.


If a landlord has not obtained consent from the lender, the tenancy is deemed an unlawful tenancy which gives the lender an automatic right to take possession of the property.


Occupiers
If anyone has a legal right to occupy the property such as tenants or licensees, you will need to get their permission.


Owner
If you are not the legal owner of the property, as registered with the Land Registry, you will need to obtain authority from the owner. Some common examples:


* Owner of a property asks a relative to let and manage a property on their behalf (letter of authority required)
* Owner of a property has an illness and lacks mental capacity so a relative has power of attorney


Under Section 1 of the Accommodation Agencies Act 1953 it is an offence to issue any advertisement, list or other document describing any house as being to let without the authority of the owner of the property or his agent.


If you are in the process of purchasing a buy-to-let property, care must be taken not to contravene the Accommodation Agencies Act.

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Why some landlords might not favour sharers

When we say ‘sharers’ we are not referring to married couples, civil partners or common-in-law partners we are referring to friends, co-workers or in some cases relatives who choose to live together as tenants.


Temporary Arrangement


Sharers are rarely a long-term arrangement so may not suit landlords who favour long-term tenants. Shortly after the start of the tenancy one of two things often happens: 1. the sharers realise they do not like living with each other and one or more of them move out/terminate the agreement. 2. one of the sharers meets someone, moves that other person in to the property or moves out to live with the other person. The landlord is the last person to find out about the new arrangements.


It’s Not My Job To…


…cut the grass, clean the kitchen, pay the rent! Each sharer assumes it is the other sharers job to fulfil what are obligations of the lease or one sharer decides not to…clean the kitchen or cut the grass because they did it last time, always do it…..


Poor Communications


The sharers may not function as an integrated unit so communications are potentially more complicated. Sharer A reports a defect in the property to the landlord but doesn’t tell sharer B. The landlord arrives to undertake the repair to be greeted by a blank look from sharer B (sharer A is at work/on holiday). If only the landlord had thought to contact all tenants before they visited.


Party House


For some younger people, sharing is a cost-effective way of escaping from parents and all those annoying house rules and to ‘dip their toes’ in the water of independent living. For some it’s an opportunity to let their hair down and party hard. The first the landlord knows of this is when the neighbours call them at 11pm on a Saturday night.

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