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Are you getting letting laws right?

Posted by Andrew Hodkinson-Smith on 2nd August 2022
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There are hundreds of separate rules and regulations that govern the lettings industry, and every year there seem to be updates and new laws for landlords to get to grips with.

 

If you use an agent to take care of your rental, you might rely on them to keep you up to date, and if they’re a member of a professional organisation such as Propertymark, you can be confident they’re properly trained and have legal support. Even so, as a landlord you should still understand at least the basics of tenancy agreements and both your and your tenants’ rights and responsibilities.

 

Some of these laws are straightforward, some are more complicated – and there are a number that are simply misunderstood. And that means there are landlords out there who are getting things wrong and might be breaking the law without even realising it.

 

So how confident are you that your legal knowledge is up to scratch?

 

Here are 7 of the most common legal misconceptions – things that both landlords and tenants sometimes get wrong – and what the law* actually says.

 

(*Note: these laws relate to England only and there may be significant differences in other parts of the UK.)

Assured shorthold tenancies are for a minimum of 6 months

Legally: An AST can be for any length of time

 

This is a very common misconception, which has probably come about because of the rules around evictions that prevent landlords from evicting a tenant within the first 6 months of a tenancy.

 

But in the eyes of the law, any let is considered an assured tenancy if the following four conditions are met:

 

  1. The tenant is an individual (not a company or organisation)
  2. The property is the tenant’s only or main residence
  3. You, as the landlord, don’t live at the property yourself
  4. The rent is below £100,000 a year.

 

If all those are true, then the terms of an assured shorthold tenancy (AST) apply, and you should use that document for the contract between you and the tenant, even if they’re only there for a few weeks.

 

Unless agreed otherwise, the tenant has to leave at the end of the fixed term

Legally: The tenant has the right to continue living in the property. If you want them to leave, you’ll have to serve a section 21 notice.

 

Some landlords think that if the original tenancy hasn’t been renewed, then the tenant automatically has to move out – e.g. if a 12-month agreement was signed, then unless there has been a specific conversation about the tenant staying on for another 6 or 12 months, the tenancy ends.

 

In fact, if neither party has given notice and a new tenancy agreement hasn’t been signed, then the original tenancy simply continues as a ‘periodic’ tenancy. Assuming rent is paid monthly, the periodic tenancy runs month to month until either party gives notice – that’s commonly one month for the tenant and must be two months for the landlord, via a section 21 notice.

You have to allow pets

Legally: If you use the government’s model tenancy agreement, you must consider your tenant’s request – but you can still refuse a pet if you have a good reason.

 

In January 2021, the government’s model tenancy agreement was updated to make it easier for tenants with pets to find a rented home. Tenants have to make a written request to the landlord if they want to keep a pet, but consent is now the default position. If landlords object, they have 28 days to respond to the tenant, giving a good reason – for example, the property isn’t suitable for the type of pet.

 

If you use any other version of an assured shorthold tenancy agreement, you can currently still state that you won’t accept pets – but we’re expecting that to change. In June 2022, the Government published its White Paper on rental reform, and one of the proposals is to give all tenants the right to request a pet in their home – although you can still refuse if you have a reasonable objection.

 

But with more and more tenants looking for longer-term homes and pets becoming increasingly popular, it’s worth allowing well-behaved animals in your property, assuming it’s a suitable environment for them. Just make sure you meet the pet first, just as you would a tenant, and get a pet reference from any previous landlord.

 

Note: Under the tenant fee ban, you can’t charge an extra fee or deposit in relation to the pet.

You can amend a tenancy agreement to add your own conditions

Legally: You can amend a tenancy agreement, but every clause must be fair and comply with the law, otherwise it’s not legally enforceable.

 

Just because something’s written into a tenancy agreement and the tenant has signed it, that doesn’t mean it’s necessarily enforceable. A court or arbitration service will disregard any clauses that are unfair, unreasonable or illegal, regardless of whether the tenant understood what they were signing.

 

For instance, you could add a clause stating that tenants can’t smoke inside the property, but you can’t add something like: ‘If the boiler breaks down, the tenant is responsible for the cost of repairs.’ You, as the landlord, are legally responsible for keeping the heating services in working order and you can’t pass this on to the tenant.

 

If you do want to make any changes to an AST, speak to your letting agent to find out whether that’s possible. And if you’re managing the let yourself, it’s a good idea to take advice from a legal letting specialist.

You can enter the property as long as you’ve given the tenant at least 24 hours’ notice

Legally: You cannot enter the property without the tenant’s permission during their tenancy, unless there’s an emergency.

 

A standard AST will usually state that the tenant must allow the landlord access, provided they’ve given 24 hours’ notice in writing. However, if the tenant refuses entry, you can’t simply let yourself in, unless there’s an emergency, such as a fire, the smell of gas or suspicion of criminal activity.

 

If the tenant is preventing necessary repairs being carried out or stopping you from making periodical inspections, you should write to them explaining the implications for their own health and safety and pointing out that they’re breaching their tenancy agreement by not allowing you reasonable access. But the only way to legally gain entry without the tenant’s permission is by getting a court order – although it’s often quicker and easier to simply evict the tenant via a section 21.

If the tenant stops paying their rent, you can change the locks

Legally: The only thing you can do is evict them via the correct legal process.

 

Regardless of how much rent your tenant owes and even if they’ve stopped communicating with you, you cannot breach the terms of the tenancy agreement. That means you can’t cut off any utilities, no matter who pays the bill, you can’t change the locks and you can’t harass the tenant for payment.

 

The only legal option you have is to evict them – either via a section 8 or a section 21. If you use a section 21, you don’t have to give a reason for the eviction and the tenant has 2 months to leave. With a section 8, you must state that the ground for eviction is rent arrears and you may be able to give them just 2 weeks’ notice.

 

The downside of using a section 8 is that if they refuse to leave, you’ll have to go to court to gain possession, and that could take many months. With a section 21, you can apply for a possession order via the ‘accelerated procedure’, which is just a matter the court processing the paperwork – so it’s generally a quicker and cheaper process than a full court hearing.

 

For more information and advice, read our blog, ‘Getting your property back – the right way to end a tenancy’. [LINK to April 2022 blog]

 

If you don’t carry out necessary repairs on the property, you can’t evict tenants via a section 21

Legally: A section 21 will only be invalid if the local authority has served notice on you.

 

When the Deregulation Act 2015 came into force, it was widely reported that this prevented landlords from evicting tenants who were complaining about the condition of their property – known as ‘retaliatory evictions’. So, many tenants believe that if they’ve asked for repairs to be carried out and their landlord has ignored them, they’re ‘immune’ from eviction.

 

In fact, a section 21 will only be invalid if the local authority has been made aware of the complaint, inspected the property and served either an improvement notice or a notice of emergency remedial action.

 

In that case, you can’t evict the tenant for six months using the ‘no fault’ section 21, although if the tenant has breached their tenancy, you may still be able to evict them via a section 8 notice.

 

 

All in all, there’s a lot to know about and understand when it comes to lettings laws, and these are just a few examples of things that landlords and tenants sometimes get wrong. If you’d like to discuss any of the regulations we’ve mentioned here, or to find out how we can help you and your rental property stay on the right side of the law, please get in touch – we’re always here to help! Just give us a call on 01253 625745 or email lettings@brighterlets.co.uk and we’ll get right back to you.