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RLA find errors in wording of proposed deregulation act

RLA find errors in wording of proposed deregulation act

RLA Find Serious Drafting Error In Rented Housing Regulations Of Proposed Deregulation Bill

The Residential Landlords Association (RLA) have called on the Government to delay the implementation of the proposed Deregulation Act after they found errors in the wording of the document that would expose private rental sector landlords to a legal minefield.

The RLA published the following on their newshub

A major drafting error in Government regulations affecting the private rented sector risks undermining confidence in new legislation being applied to the sector.

The Deregulation Act, passed prior to the General Election, provides Ministers with the power to introduce a new standard form for landlords to complete and provide to a tenant when seeking to regain possession of a property on a no fault basis, known as a Section 21 notice.

With the form due to become legally binding from the 1st October, the Residential Landlords Association (RLA) has written to the Housing Minister, Brandon Lewis MP, to seek a delay following the revelation of a serious drafting error.

The standard form, as currently drafted, notes that where a fixed term tenancy ends and then turns into a rolling or periodic tenancy the Section 21 notice would only be valid for four months from the date that it is served on the tenant*.

This contradicts the Deregulation Act, which makes clear that the required period to regain possession of a property where a tenancy is a rolling or periodic tenancy, should instead be four months from the date the Section 21 notice expires**.

Despite having engaged thoroughly with the Government on its proposals, the final version of the standard form, published last week, had not been shown to the RLA.

The RLA is warning that the drafting exposes landlords to a legal minefield, and is calling for the implementation of the plans to be delayed to give more time to get them right.

RLA policy director, David Smith, said “The RLA continues to share the Government’s ambitions to ensure that all landlords understand and properly implement their legal responsibilities and obligations. In light of the major changes being introduced for the sector it is vital that all documents published by the Government are clearly understood. This drafting error will serve only to dent the confidence of landlords in the legislation. Whilst Ministers are understandably eager not to let these new measures drift, it would make more sense not to rush their implementation than face the potential legal difficulties that will now arise for landlords.”

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Superstrike Case Causes Confusion

Superstrike Case Causes Confusion

Lord Justice Lloyd delivered judgement on an appeal from Wandsworth County Court for the case of Superstrike Ltd v Marino Rodrigues on the 14th June 2013 and since then conflicting advice has been offered by different landlord associations.

The Residential Landlords Association (RLA) told its members that they will be issuing updates shortly, after they have sought advice from its deposit protection partner the Tenancy Deposit Scheme (TDS).

By contrast, the National Landlords Association (NLA), who have business links with MyDeposits and the UK Association of Letting Agents (UKALA) have condemned the speculation and online reporting of the case.

The NLA issued advice to members stating that the Superstrike case also only relates to landlords within a particular timeframe, who used Section 21 notices. In reality the case will have little effect on landlords and insist that the ruling only pertains to tenancies started before April 6, 2007, and which have subsequently become periodic.

The NLA are discussing the matter with officials responsible for tenancy deposit protection (TDP) legislation within the Department for Communities and Local Government (DCLG) and legal professionals.

It is important to understand that appeal judges only consider the case presented to them, not a similar set of circumstances, or a variation on a theme.

The precedent they set is therefore only applicable to cases subject to the same set of circumstances. This fact is crucial in this instance as the case of Superstrike Ltd v Rodrigues is not representative of all landlords or private tenancies.

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Tenant Eviction - How Landlords should do it

Tenant Eviction – How Landlords should do it

Landlords Need To Know How To Handle Tenant Rent Arrears

As many UK landlords already know, there are always some issues that can arise during the course of a tenancy. These can vary from essential repairs to rent arrears and with the UK still slowly recovering from a double dip recession, money is tight all around.

With this in mind Legal 4 Landlords offer landlords some sound advice on dealing with tenants in rent arrears before being forced to take legal action for the eviction of the defaulting tenant.

Some tenants are still struggling financially and many are increasingly finding it hard to keep up with their monthly rental payments as well as dealing with the increasing cost of living. Many tenants experience problems due to changes in personal circumstances, such as redundancy or pay cuts, rather than intentionally refusing to pay rent.

Having to pay the mortgage on rental property and not receiving the rent is stressful for all landlords without Rent Guarantee Insurance, but when a tenant is having difficulty paying the rent, there are still a number of options open to landlords before having to resort to eviction.

  • Try to resolve arrears with the tenant to avoid time consuming and often costly court proceedings, especially if they have generally paid in full and on time.
  • Discuss a realistic payment plan with your tenant and encourage them to pay what they can each month to keep down their arrears, confirming everything you agree upon in writing
  • Seek a money order via the Small Claims Court which will order the tenant to pay back the money they owe. This can happen at any time during the tenancy and you do not need to ask your tenant to leave. If the money order isn’t settled within 14 days then your tenant will have a County Court Judgement (CCJ) entered against their name and the order can be enforced via the courts. (Remember that if your tenant is genuinely not in a position to pay then this may be slightly unfair as you will only be worsening their position).

If the tenant still refuses to pay up or insists that they can longer afford the rent, then landlords must follow the legal process for eviction of the tenant in order to recover possession of their rental property.

Serve Notice To Quit

The benefit of an Assured Short-Hold Tenancy (AST) is that the provisions make it much easier to evict a tenant than other tenancy agreements.

Briefly, there are two ways of serving notice to quit when your tenant has fallen into arrears.

1. Section 21 – end of tenancy possession

Section 21 enables a landlord to gain possession at the end of a tenancy without providing reason. There are two types of Section 21 notices: the Section 21(a) notice for possession of a periodic tenancy (that is, when the fixed term of the lease has expired and not been renewed); and the Section 21(b) notice for possession of a fixed term tenancy.

With the Section 21(a) notice for a periodic tenancy, you must provide notice of two months’ or the amount of time between rent payments (e.g. 3 months for quarterly payments), whichever is greater.

If you want to serve notice at any point during the fixed term of the tenancy, you must serve a Section 21(b) notice. As with Section 21(a) you must provide at least two months’ notice, however the earliest date on which the tenant must vacate the property cannot be earlier than the last day of the fixed term of the lease.

Note: you must have secured the tenants deposit in one of the 3 government approved tenancy deposit protection schemes otherwise the Section 21 notice could be invalid.

2. Section 8 – fault based possession

Unlike Section 21, the Section 8 notice can be served at any point during the tenancy. However, it is a lengthier process so it is advisable only to use this route if you have more than 3 months left of the fixed term.

There are 17 grounds on which you can claim fault based possession, 8 of which are mandatory i.e. if the landlord can prove these then the court must give possession. Rent arrears falls under the mandatory ground 8 as well as discretionary grounds 10 and 11, all requiring two weeks’ notice.

If the tenant refuses to vacate and/or hasn’t paid their arrears after the notice period has elapsed, you will need to apply to the court for a possession order and/or a money order.

Legal 4 Landlords can handle all aspects of debt/rent recovery and are the UK’s leading specialists in tenant evictions.

Under a possession order, the court sets a date for the tenant to vacate the property after which they can be forcibly removed by bailiffs.

UK Landlords are warned not attempt to evict tenants themselves or they could face legal action for unlawful eviction and landlords should always use the professional services of an eviction specialist.

Legal Update by Legal 4 LandlordsFollowing a recent High Court decision the new defence to a Section 21 Notice is none compliance with The Housing (Tenancy Deposits) (Prescribed Information) Order 2007

The decision in Suurpere-v-Nice (2011) confirms that the prescribed information must be complied with and if this is not done landlords could be subject to sanction when before the Courts

The Sanctions

  • If a possession claim subject to section 21 of the Housing Act 1988 is issued without the information being properly provided and served, the section 21 notice will be invalid and the claim could be struck out.
  • A counter claim can be made, and if the prescribed information has not been provided or if the deposit was not registered, the Court may award 3 times the deposit.
  • Ultimately the deposit protection is the responsibility of the landlord and as managing agents you have a duty to comply with the regulation on behalf of the landlord.

What is “Prescribed Information”?

• The minimum information required by statute that is to be given to the tenant on registration of the deposit. This must be as a separate certificate and signed by the landlord and tenant and not part of the tenancy agreement.

• This must be a certificate and it must be sent to the tenant with the proof that the deposit has been registered together with any information provided by the individual deposit scheme.

Download our Fact Sheet on Deposit Law Issues and Latest Case Law Updates and Clarifications

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