Category: Tenants

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 come into force on 1st June 2020 and apply to all new tenancies from 1st July 2020 and all existing tenancies from 1st April 2021.

Overview

Landlords must ensure that the standards for electrical installations in the eighteenth edition of the Wiring Regulations are met during any period when the residential premises are occupied under a tenancy.

First Inspection and Testing

For new tenancies (including renewals), the first inspection and test must be carried out before the tenancy commences. For existing tenancies, the first inspection and test must be carried out by 1st April 2021.

Inspection and Testing Intervals

Inspection and testing must be carried out at intervals of no more than 5 years or where the most recent inspection and test report requires inspection and testing to be at intervals of less than 5 years, at the intervals specified in that report.

Inspection and Test Reports

Landlords must:

• Obtain a report from the person conducting the inspection and test;
• Supply a copy of that report to each existing tenant of the premises within 28 days of the inspection and test;
• Supply a copy of that report to the local housing authority within 7 days of receiving a request in writing for it from that authority;
• Retain a copy of that report until the next inspection and test is due and supply a copy to the person carrying out the next inspection and test;
• Supply a copy of the most recent report to any new tenant before the tenant occupies the premises;
• Supply a copy of the most recent report to any prospective tenant (1) within 28 days of receiving a request in writing for it.

Remedial Work

Where an inspection and test report indicates that an installation does not meet or potentially does not meet the standards for electrical installations in the eighteenth edition of the Wiring Regulations and the report requires further investigative or remedial work, landlords must (2):

• Ensure that the investigative or remedial work is carried out within 28 days or the period specified in the report if less than 28 days, starting with the date of the inspection and testing.
• Obtain written confirmation from a qualified person that the further investigative or remedial work has been carried out and that the standards for electrical installations in the eighteenth edition of the Wiring Regulations are met or further investigative or remedial work is required.
• Supply that written confirmation, together with a copy of the report which required the further investigative or remedial work to each existing tenant of the residential premises within 28 days of completion of the further investigative or remedial work;
• Supply that written confirmation, together with a copy of the report which required the further investigative or remedial work to the local housing authority within 28 days of completion of the further investigative or remedial work.
• Where further investigative work is carried out is that further investigative or remedial work is required, the must repeat the steps above in respect of that further investigative or remedial work.

1. A prospective tenant is a person who requests information about the premises, makes a request to view the premises or makes an offer to rent those premises.
2. According to the UK government guide for landlords, further remedial work is not required for observations with Classification Code C3.

Further Reading

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
Guide for landlords: electrical safety standards in the private rented sector

Common Law

• * The minimum period for a notice to quit is a complete period of the tenancy
• * The notice period must end on the last day of a period of the tenancy
• * A notice that expires on the first day of a period of the tenancy has the same effect as a notice ending on the previous day

Statute

• * A notice must be in writing
• * A notice must be given not less than 4 weeks before the date on which it is to take effect

Case Law

• * If the period of the tenancy is longer than 4 weeks, the notice period is equivalent to the period of the tenancy, except for yearly periodic tenancies where the notice period is six months
• * Once served a notice cannot be withdrawn
• * In calculating the notice period, the day on which a notice is served is included but the last day referred to in the notice is not. For example, a notice served on a Tuesday that expires on a Tuesday four weeks later would comply with the four weeks’ notice requirement.
• * A notice must expire on either the first or last day of a period of the tenancy. For example, a notice served on the first of a month to end a monthly tenancy that began on the first of January could expire on the first day of a whole period of the tenancy, i.e. the first of February. It could not expire on the last day of the period, i.e 31 January, because that would not constitute a full monthly period of notice (it would be short by one day).
• * A notice that includes an appropriately worded ‘savings clause’ will be valid

Editors Note: There is no rule of law that requires a tenant to give notice to end a fixed term tenancy. The now withdrawn guidance on unfair terms in tenancy agreements published by the Office of Fair Trading in September 2005 stated:

‘A fixed term tenancy comes to an end when the fixed term runs out and a tenant does not have to give notice to end it.‘

The guidance implied any clauses requiring a tenant to give notice to end a fixed term tenancy is a misleading termination clause.

The same guidance objects to terms that impose a contractual obligation on the tenant to give notice in order for the tenancy to be terminated at the end of the fixed term.

Editors Note: We are not aware this particular guidance has ever been tested in court. The same guidance suggests landlords should serve a notice requiring possession if they want to make it clear they want to end the tenancy at the end of the fixed term. This is not a very elegant solution. Aside from the complexities of such notices it would create uncertainty for the tenants having been served with a ‘sword of Damocles’ notice so early in a tenancy. A tenant notifying the Landlord they plan to end the tenancy at the end of the fixed term is a reasonable courtesy.

Contract

* A tenancy agreement may require the tenant to give a longer period of notice.

Almost 12 million households in the UK own a pet so you could question why a landlord would exclude such a large proportion of the population by stipulating ‘no pets’ when they advertise their property for rent.

Traditionally many landlords have recognised how widespread pet ownership is and how tenants with pets can make good long-term tenants. Pets are often welcomed by landlords subject to certain conditions including payment of a higher deposit and an agreement that the tenant would have the carpets professionally cleaned at the end of the tenancy.

The arrival of the Tenant Fees Act on 1st June 2019 is a game-changer and is likely to have a negative effect on tenants with pets. Three parts of the Act that will have an effect on tenancies with pets are:

1. Tenancy Deposits are now capped at 5 weeks rent – landlords can no longer require a tenant pays a tenancy deposit higher than 5 weeks rent.

2. A landlord must not require the tenant enters into a contract for the provision of a service with a third party in connection with a tenancy – landlords can no longer require a tenant to enter into a contract with a vet, pest controller or cleaner.

3. A landlord must not require the tenant enters into a contract for insurance with a third party in connection with a tenancy – landlords can no longer require a tenant to have tenant liability insurance or third party liability insurance for their pet.

Likely Outcome

1. Landlords are less likely to let their property to tenants with pets – the changes the Act brings will be perceived to expose landlords to higher risk and cost so many landlords will simply advertise their properties as ‘no pets’. For those landlords who never welcomed tenants with pets their stance will harden and more than ever these landlords will refuse to consider tenants with pets.

2. Higher rents – of those landlords who welcomed pets in the past many (but not all) will continue to do so ‘subject to negotiation’ and landlords will expect tenants with pets to offer and pay a higher rent to cover three things:

• Treating the property for fleas and other parasites at the end of the tenancy
• Cleaning the flooring and soft furnishings at the end of the tenancy
• Additional rent in lieu of the additional tenancy deposit (pet deposit) previously collected to cover any damage caused by the pet

A few points of note on this:

• 9% of the UK population have a pet allergy. 1 in 4 cats and 1 in 7 dogs are carrying fleas, and about 11 per cent of these fleas are infected with potentially pathogenic bacteria (Bartonella). For the sake of the health of the next occupier of their property landlords can only hope, but cannot require, outgoing tenants will treat the property for fleas and other parasites and clean the flooring and soft furnishings so will need to take responsibility for this. The only way to legally recover the cost of this is to charge tenants with pets a higher rent.

• The cost of the flea treatment and cleaning will reasonably need to be collected during the term certain for the tenancy (fixed term of the tenancy). Under the Act landlords cannot charge a higher rent for a period at the start of the tenancy and reduce the rent for a later period in the tenancy. The larger the property and the shorter the fixed term, the higher the premium will be and with most tenancies continuing beyond the fixed term, tenants with pets will ultimately be paying more in increased rent than the cost of the fees they paid before the Act became law. Good news for landlords, bad news for tenants with pets.

• Landlords will need to ensure, and make it clear, tenants are paying a ‘higher rent’ and not a ‘pet fee’ or ‘pet deposit’ as these fees or deposits are prohibited under the Act.

• Section 13 rent increases during a tenancy for which a tenant is paying a premium rent could prove to be awkward as tenants could challenge the increase on the grounds that the rent is unreasonable and a rent above market value may be considered unreasonable by a tribunal. A possible workaround for landlords is to include a rent review clause in the tenancy agreement. Rent review clauses apply to fixed term tenancies and contractual periodic tenancies only.

Further Reading

1 in 4 cats and 1 in 7 dogs carrying fleas with high levels of bacteria, finds Big Flea Project (Bristol University)

1. Rent

2. Tenancy Deposit – maximum five weeks’ rent where the annual rent in respect of the tenancy immediately after its grant, renewal or continuance is less than £50,000, or six weeks’ rent, where the annual rent in respect of the tenancy immediately after its grant, renewal or continuance is £50,000 or more.

3. Holding Deposit – maximum one week’s rent.

4. Payment in the event of a default – for the loss of a key to, or other security device giving access to, the housing to which the tenancy relates pay the costs which are reasonably incurred by the Landlord or his Agent as a result of the default. {my understanding from this is that ‘security device giving access’ is a fob or card – sometimes called proximity devices}

5. Payment in the event of a default – for the failure to make a payment of rent in full before the end of the period of 14 days beginning with the date (“the due date”) on which the payment is required to be made in accordance with the tenancy agreement pay the aggregate of the amounts found by applying, in relation to each day after the due date for which the rent remains unpaid, an annual percentage rate of 3% above the Bank of England base rate to the amount of rent that remains unpaid at the end of that day.

6. Payment of damages for breach of a tenancy agreement or an agreement between a letting agent and a relevant person

7. On variation, assignment or novation of a tenancy at the tenant’s request pay the greatest of £50 and the reasonable costs of the person to whom the payment is to be made in respect of the variation, assignment or novation of the tenancy.

8. On termination of a tenancy at the tenant’s request in the case of a fixed term tenancy, before the end of the term, or in the case of a periodic tenancy, without the tenant giving the period of notice required under the tenancy agreement or by virtue of any rule of law pay the Landlord the loss suffered by the Landlord and pay his Agent the reasonable costs of the Agent for arranging the termination of a tenancy.

9. Payment in respect of council tax

10. Payment in respect of utilities

11. Payment in respect of a television licence

12. Payment in respect of communication services

A Landlord or Agent taking any other payments from a Tenant on or after 1st June 2019 in consideration of the grant, renewal, continuance, variation, assignment, novation or termination of a tenancy are prohibited.

Due

Rent becomes due on the morning of the day specified for payment in the tenancy agreement. This day is commonly referred to as the ‘rent day’ and is a core term of the tenancy.

Payable

Rent may lawfully be made payable on any day including a Sunday.

Rent due upon a bank-holiday will not be payable until the following day.

If a term of the tenancy is to pay rent by Standing Order, this will restrict the days the rent will be received by the landlord as the bank may not process Standing Orders on weekends and although the bank may deduct the rent from tenant’s available balance it may not be credited to the landlord until the next working day.

Overdue

If rent is not paid by midnight on rent day then it is held to be in arrears.

References

Re Aspinall v Aspinall (1961)

Dibble v Bowater (1853)

Child v Edwards (1909)

s.1 Banking and Financial Dealings Act 1971

What is a bedroom?

A bedroom is a room that is available as sleeping accommodation if it is of a type normally used in the locality either as a living room or as a bedroom. {Housing Act 1985, Chapter 68, Part X}

The answer to the topic question is dependent on a number of factors including:

* Number of occupiers using the bedroom
* Age of occupiers using the bedroom
* Whether the property is a licensed HMO
* Type of occupant

Number and age of occupants
One of the criteria for assessing overcrowding under the Housing Act 1985 is the floor space based on the number and age of occupants.

For a child aged under 1 there is no minimum space standard.

For a child aged 1 or over but under 10 the floor are of the room must be at least 50 sq. ft. (4.65 sq. metres).

For two children aged 1 or over but under 10 sharing a bedroom or 1 person aged 10 or over the floor area of the room must be at least 70 sq. ft. (6.51 sq. metres).

For two adults living together as a couple the floor area of the room must be at least 110 sq. ft. (10.22 sq. metres).

{Housing Act 1985}

HMO

In 2018 the government announced that it will proceed with introducing a national minimum room size for bedrooms in licensed HMOs:

Rooms used for sleeping by 1 person over 10 will have to be no smaller than 6.51 square metres, and those slept in by 2 people over 10 will have to be no smaller than 10.22 square metres. Rooms slept in by children of 10 years and younger will have to be no smaller than 4.64 square metres


Type of occupant

The type of occupant has also been shown to be relevant in room size cases. This was illustrated in the case of Nottingham City Council v Dominic Parr and Trevor Parr Associates Ltd [2017] EWCA Civ 188 which was heard last year in the Court of Appeal. The Council’s guidance suggested that 8 sq. metres was an acceptable bedroom size and the licences issued prohibited the use of two attic rooms until the usable floor space had been increased. The First-Tier Tribunal had deleted the condition and imposed an alternative condition that the rooms could be used by full-time student who resided in the room for a maximum of 10 months of the year. This was upheld by the Upper Tribunal and the Court of Appeal concluded that there was nothing unlawful about a HMO licence restricting occupation of a bedroom to students only. The Supreme Court has granted permission to Nottingham City Council to appeal the decision.

Further Reading

Shelter – Overcrowding
HMO National Minimum Room Size and Suitability {Anthony Gold blog}
Housing Act 1985, Chapter 68, Part X
When is a bedroom not a bedroom {Jungle Property blog}

Unlike rodents, wasps and cluster flies, bats are not pests. As population numbers have fallen, all bats and their roosts are protected under The Wildlife and Countryside Act 1981 (as amended) and The Conservation of Habitats and Species Regulations 2010 (as amended). Under these pieces of legislation it is illegal to:

* deliberately capture (or take), injure or kill a bat;
* intentionally, recklessly or deliberately disturb a bat. In relation to the The Wildlife and Countryside Act 1981 (as amended) the offence applies whilst the species is occupying which it uses for shelter or protection; in relation to the Conservation of Habitats Regulations 2010 (as amended) it applies anywhere;
* damage or destroy the breeding or resting place (roost) of a bat;
* possess a bat (alive or dead), or any part of a bat;
* intentionally or recklessly obstruct access to a bat roost;
* sell (or offer for sale) or exchange bats (alive or dead), or parts of bats.

Under the law, a roost is any structure or place used by bats for shelter or protection. Because bats tend to re-use the same roosts year after year, the roost is protected whether or not bats are present. In this context ‘damage’ could include treatment with chemicals found in wood preservatives.

For more information contact the Bat Conservation Trust here

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.

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.

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.