The Top Ten Essential Legal Compliances for Residential Property Landlords
Landlords of residential properties have an obligation by law to fairly maintain, service, and repair their dwellings – after all, these are the homes of tenants. This doesn’t relate to longer leasehold interests where ‘tenants’ need to act more like an owner themselves; this is for shorter term ones like AST lets.
The Lease Says It All
The golden rule when looking at any landlord and tenant obligations is the lease.
What these leases clauses say, goes. It is often only in extreme circumstances where the law of the land has to override this, for example fairer levels of fees being charged under the Tenant Fees Act 2019.
The Wider Law
However, with such shorter-term residential properties there is a whole host of general legislation and statutes that obliges a landlord to carry our certain things.
Without getting into the legal technicalities too much, here is a general overview of the top ten ones to be aware of when it comes to the general condition, maintenance, and letting of the residential dwellings:
1. Keeping the Property in Repair
The classic legislation is the Landlord & Tenant Act 1985 where the landlord has a duty to maintain basic services and fabric for tenants. So, whether that’s a leaking roof or a broken boiler; the landlord has to deal with.
There is also the Homes (Fitness for Human Habitation) Act 2018 as a newer statute from March 2009 where there is an implied covenant on landlords to ensure that “dwellings” are “fit for human habitation”.
Certain issues are stated such as asbestos, and services like electrics and water supply, with condensation and mould being popular ones; there’s also other less obvious ones like noise and hygiene.
The landlord may also have legitimate defences as well, for example no damage to a tenants own items, fire damage, and refusal from overriding interests like head landlord’s consent.
2. Fair Tenant Charges
This is mainly through the recent Tenant Fees Act 2019, with details here of the three main changes, one which relates to reduced normal and holding deposit requirements.
The others relate to no administration charges being issued for lease renewals or new lettings, and fair recharges of costs back to tenants.
3. Correctly Lodging Deposits
This has been around for many years now; landlords having to correctly lodge and hold tenant’s security deposits, not just keep (and maybe use) the monies themselves, through the Housing Act 2004 for all AST’s from April 2007.
There are two types of specific schemes that must be used, one involving the actual transfer or money to appointed third part, the other taking out an insurance cover and keeping the money safe.
Regarding time scales, the deposit must be lodged and Prescribed Information issued to the tenant within 30 days of the landlord receiving the deposit monies (not necessarily the tenancy start).
4. EPC (and MEES)
The provision of an Energy Efficiency Certificate has also been in existence now for many years, but can get missed in the detail.
Such EPCs are required for new lettings and lease renewals, and to be instructed before even marketing the property (with no excuse for Covid-19 restrictions at the time of implementation).
Even though you may have one already in place from years ago, just make sure it’s up to date as they require renewal after ten years.
Once you do have them, you must legally send a copy to the tenant at the point of taking out a lease. If not, a landlord can face difficulties in enforcing say Section 21 notices afterwards.
In practice, tenants need to confirm in writing that received upon every new lease really.
Also, tenants do have the right to request any suggested improvements to the property by the landlord in order to improve the energy efficiency (there is a recommendation report with the EPC as well), so long as no upfront costs are required.
The MEES obligation links to an EPC, but technically a different requirement.
This enforces a minimum energy efficiency of grade of E or above on “domestic private rented property” to be
legally let, which by definition means you must have an EPC in order to prove this.
Whereas this was only applicable for new lettings or lease renewals from April 2018, from April 2020 it includes all let residential properties.
There are certain exceptions to this such as holiday lets, plus exemptions where a landlord can be released from completing further energy efficiency works to increase the rating from a F or G by registration on the PRS Exemptions Register.
Examples of legitimate reasons include all works already being completed but with no sufficient grade improvement, high value works, restricted third party approvals, and new landlords in the last six months.
Therefore, if you don’t require an EPC for the property then you don’t fall under the MEES requirements.
However, there may be times when an EPC is still commissioned for other purposes anyway – therefore just check if an EPC and therefore MEES obligations is actually required.
Longer term, bear in mind plans to increase the restrictions to grade D from 2025 and C from 2030 as well.
5. Right to Rent
We have a resource here on this which means a landlord must demonstrate that occupiers of the dwelling are allowed to reside in the UK. This includes all occupiers over 18 years old at the property, not just tenants named on the lease.
The main document to prove this immigration status is a passport, but all kinds of other ones and requirements can be provided including temporary stays as part of the detailed guidance.
Sufficient copies must be taken and kept for certain times, with any relevant re-checks in the future.
6. Section 8 and 21 Notices
These are the two types of notices under the Housing Act 1988 that a landlord can serve to end the popular AST (Assured Shorthold Tenancies) – otherwise they will turn into Statutory Periodic ones afterwards.
Section 21s are more popular as they’re quicker, cheaper, and require less proof from a landlord and court hearings. However, they can’t be served within the first 4 months of any tenancy and take effect until at least the end of the term, whereas section 8 can be within the term if there is a sufficient forfeiture/re-entry clause in the lease (which is why landlords’ sometimes don’t renew a lease and keep as a Statutory Period are in order to serve a Section 21 notice sooner).
And even if a landlord does succeed, it can still be many months before seeing an unwilling tenant vacate after a Possession and Eviction Order.
Plus, the government has made clear it that they’re looking to end such Section 21 notices over time, with tighter requirements already coming in such requiring documents like an EPC, Gas Certificate, and “How to Rent Guide”, and the notice period extend from two to three months.
7. The Government’s How to Rent Guide
This is the government’s generic guide to help tenants know their rights, with a specific obligation for a landlord to issue a copy of this when a new lease is agreed (along with an EPC and Gas Certificate if applicable).
Just make sure that receipt/service is noted in writing, and that the latest version is issued as the government has a habit up updating these.
8. Gas Safety
This comes under the Gas Safety (Installation & Use) Regulations 1998 with two main obligations.
Firstly, to complete safe maintenance of gas supply every year , including ancillary gas items like flues and chimneys, for residential leases under seven years by a Registered Gas Engineer.
Secondly, this must be communicated via a Gas Safety Record to the landlord, who in turn is obliged to forward a copy to the tenant and keep copies on file for the last two years.
This tenant-copy is key, with knock-on effects to enforceability of other landlord rights if not provided.
9. Electrical Checks
These are new obligations under the Electrical Safety Standards through the Private Rented Sector (England) Regulations 2020 effective from the 1st June 2020. These are only for new leases entered into from the 1st July 2020, but will include all existing ones by 1 April 2021.
A qualified electrician needs to complete such checks every five years, and must complete any remedial works from these tests within 28 days of inspection.
Plus, copies must be issued to the tenant in the same was that the above Gas Safety Certificate is.
As an aside, you still have the Portable Appliance Testing obligations for items that basically plug in like washing machine, a kettle, or TV. Although not technically a legal obligation, it’s good practice to do so at least every few years in order to defend any claims that dodgy electrical items caused a fire.
However, be clear on who owns what portable electrical items in order to see who does what. If a landlord has provided say white good with the let, then they will need to still PAT test them.
10. Fire Safety
This can get complicated, and link with other obligations in say communal areas of a block of flats and Stay Put policies, as well as controversial physical fire-resistant items like cladding as with the horrific Grenfell incident. Also other offshoots such as HMOs and elderly or student accommodation, will have additional requirements.
For an individual dwelling, the main obligation is having an effective smoke detector to warn people of a fire through the The Smoke and Carbon Monoxide Alarm (England) Regulations 2015.
In short, there must be one every story of accommodation with living accommodation; plus, a carbon monoxide one where there are gas appliances.
They can be simple battery ones as opposed to full hared-wired ones, and need to be sufficiently checked (and documented) by a landlord as working before any new lease.
However, during the lease it’s okay to oblige the tenant to regularly test these say every week (and ideally record).
The Proactive Landlord
Therefore, all short-term residential landlords, and managing agents acting on their behalf; be aware. The law of the land obliges them to do certain things in order to ultimately look after and keep tenant occupants safe.
Always begin by taking a step back, understand the general gist of being reasonable, and see if you can come to a sensible solution.
Also, watch out for any unique circumstances, for example; under Covid-19 lock-down ones where access is limited to residential areas and restrictions on landlord’s taking action to evict tenants through the Coronavirus Act 2020.