Tuesday, 13 February 2018 18:52

New Paperwork For Existing Tenants Required

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New Paperwork For Existing Tenants Required

At this months PDPLA members meeting we had a presentation on the regulatory changes that now mean that ALL landlords should:

  • Ensure they have the necessary new paperwork in place even for tenants that they have had for years and
  • Serve the relevant items now to avoid issues should the tenancy become problematic later

There  was much debate about, for example, how often you need to check someone’s passport if they are British (and remember, 15% of Britons don’t have passports – so what do you do then?). But the key point in all of these areas is that you need to have a clear audit trail to show you are legally compliant. If you do, you should have no problems. If you don’t you run the risk of major problems in the future.

For details of what you must do, read on….

SECTION 21
The eviction notice's official title in the courts is a 'Notice Requiring Possession (under section 21 of the Housing Act 1988)'.
It's used in England & Wales by landlords to evict tenants and to gain possession of a property that is let under an assured shorthold tenancy (AST)

How has the Section 21 changed since 1 October 2015?

From 1 Oct 2015, Section 21(1) and Section 21(4) have been combined to create

  1. Section 21 (Form 6A)b) You can only issue new Section 21 from the 1st day of the 5th month of a fixed 6 month tenancy.
  2. It only has a life span of 6 months from when it was issued. (previously is was an indefinite time period)
  3. You cannot serve a Section 21 as a retaliation (Retaliatory Eviction) to legitimate complaints made by tenants.
  4. You need to serve a number of documents on the tenant before you can serve a Section 21 on them.
  5. For a fuller list refer to: https://www.rla.org.uk/landlord/guides/section-21-notice-frequently-asked-questions.shtml

What documents must you serve a tenants before serving a new Section 21?
1. EPC.
2. Gas Safety Certificate.
3. ‘How to rent: the checklist for renting in England’
4. Protection of Deposit documents:
    (a) Certificate of Deposit Protection.
    (b) Deposit Protection Prescribed Information and Clauses.
    (c) Deposit Protection Scheme Leaflet.
    (d) Addendum to the AST explaining where the deposit is protected
         and what it can be used for. (This can be written into the AST)

1. EPC

(a) Valid for 10 years.

(b) Tenant needs to be served a valid one before a Section 21 is served.

2. Gas Safety Certificate

(a) Heating engineer can write a statement saying he issued it to a tenant.
(b) Not needed for all electric properties.

  • 3. “How to rent: the checklist for renting in England” [Booklet]:
  • a) If an AST is inexistence before 1 Oct 15 the most up-to-date booklet must be issued to the tenant

  • b) Every time a rental contract changes the most up to date booklet must be 
  • reissued to the tenant.
  •  
  • c) When a Statutory Fixed Term Tenancy automatically moves to a rolling Statutory 
  • Periodic Tenancy (a ‘Silent Contract’) the most up to date version of the booklet 
  • needs to be reissued (if no updated booklet available, the booklet issued at the 
  • start of the tenancy would need to be reissued).
  • d) When a Statutory Fixed Term Tenancy moves to a rolling Statutory Periodic 
  • Tenancy because it is stated in the AST it would, the booklet does not need 
  • to be reissued.
  • e
  • ) Statutory Fixed Term Tenancy moves to another Statutory Fixed Term Tenancy 
  • the most up to date version of the booklet needs to be reissued (if no updated 
  • booklet available, the booklet issued at the start of the tenancy would need 
  •  to be reissued).
  • * Note: Probably best to reissue booklet between any fixed and periodic tenancy to avoid confusion.

    f) Section (4) Paragraph (1) [of act] does not require a landlord, or person acting  on behalf of the landlord, who has provided the tenant with the “How to rent:  the checklist for renting in England” to supply a further copy of the document   each time a different version of that document is published during the tenancy.

    4 Deposit Protection Documents:
    a) From 7 April 2007 deposits had to be protected from 14 days of the   start of a tenancy, or from 7 April 2007 if a tenancy was already in existence; or the deposit returned to the tenant.
    b) From 6 April 2012 deposits had to be protected from 14 days of the start of a tenancy.
    c) If this was not done the tenant always has a claim over the landlord.
    d) If deposit has not been protected it needs to be returned to the tenant before a Section 21 is issued.

    Serving Documents:

    With Tenant Co-operation:
    Either,
    1. Tenant to sign and date a physical copy to show receipt of documents.
    Or,
    2. The document(s) sent by email and then an email from the tenant confirming receipt of the document(s).
       (You must first get permission (can be by email) that the tenants are happy to receive tenancy documents by email.)

    Without Tenant Co-operation:
    (a) Photograph the document next to the day’s newspaper (to confirm date)  outside the property.
    (b) Photograph the document being posted through the tenant’s letterbox.
    (c) Get a witness statement (from a witness that was present)   stating that you had served the documents.
    (d) Complete a form N215 ‘Certificate of Service’ for each document served.

    * Note: (1) The N215 is a written declaration that a document has been served.
                (2) Judges have not been favourable if a N215 has not been completed  by the landlord for any document served to a tenant.
                (3) The N215 does not have to be signed by the tenant and therefore 
     could be completed retrospectively before a court case.

    Right to Rent Checks:
    a) For new tenancies after Feb 2016 OR changes of tenancies that existed before Feb 2016 e.g. change of name, addition of household member.

    b) Failure to comply can result in fines of up to £6,000

    c) If a tenant changed their name you need to repeat the Right to Rent check on everyone in the household.

    d) If someone joined the household you need to repeat the Right to Rent check on everyone in the household irrespective of whether you had already done it! May even be a student coming back to live with their parents.

    Best Practice:
    a) Get in the habit of serving a Section 21 when it is needed rather than habitually.b) Issue the EPC, Gas Safety Certificate and the latest version of the ‘How to rent: the checklist for renting in England’ now if you have not done already.

    a) Reissue the EPC, Gas Safety Certificate and the latest version of the ‘How to rent: the checklist for renting in England’  before the Section 21 is issued.

    b) There is no time span set to do this, you could issue the documents one day and then issue the Section 21 the next.

    c) When going to court, the original date of issue of the EPC and Gas Safety Certificate must be stated. 

    d) A judge may be less favourable if these documents were not initially issued.

    e) When going to court, a judge may be less favourable if documents were issued last minute before the Section 21 served, even though doing so is legally acceptable.

    f) When going to court evidence of serving required documents is needed.

    Last modified on Wednesday, 14 February 2018 15:55

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