Information Legislation

This area allows you to access up-to-date information on lettings. The area is split into two; Legal Hot Points area which specifically targets the current changes in the law while the FAQ's provide advice and tips for landlords and tenants. We hope you find this information of use.

Disclaimer: The following is only our opinion and is written without liability to Black Katz whatsoever. For clarification of any issues we strongly advise that you contact your solicitor or local authority or visit the website www.communities.gov.uk

LEGAL UPDATES

Important News * 

The 6th April 2012  Brings Changes in Tenancy Deposit Protection - Localism Act 2012

What are the changes;
The deposits must be protected and the Prescribed Information provided within 30 days ( increase from 14 days ).
A landlord WILL be obliged to protect the deposit within 30 days and if he/she fails to do so he/she is in breach of the legislation and the tenant can immediately issue proceeding against the landlord.

The penalty can be up to 3 times the value of the deposit.

ASSURED SHORTHOLD TENANCY LEVEL TO RISE TO £100k PER ANNUM.

We would like to bring to your attention that the Government has announced several new levels of protection for tenants in the private rental sector.

One of the main changes will be to raise the threshold for an AST from £25k to £100k pa.

This means from the 1st October 2010 all tenancies with annual rents up to £100k will become an ASTand will need to be protected with one of the three government - approved tenancy deposit schemes.

Landlords with existing General Agreement which will become AST when the rental threshold is increased will not need to protect their tenants deposits in one of the three government - approved tenancy deposit schemes, although we would highly recommend that is good practice to do so. However if the tenancy is renewed on or after the 1st October, or a new deposit is taken you will have to protect the deposit.

Company Lets are not included in this new legislation.

If you need more information please contact Natasha Eddy on tash@blackkatz.com

ENERGY PERFORMANCE CERTIFICATE.

From the 1st of October 2008, all rental properties with a new tenancy in England and Wales will be required to have an Energy Performance Certificate (EPC).

  • a landlord will need to provide an EPC, which will be valid for ten years, to prospective tenants the first time you ler or re-let your property after the 1st October 2008. However you will not need to provide an EPC certificate to tenants that renew their contracts as it is not necessary to supply an EPC to an excisting tenant.

What is an Energy Performance Certificate?

The Energy Performance Certificate tells you how efficient and environmentally friendly your property is. The energy efficiency is worked out on a scale of A-G.

A being the most efficient and G being the least.

Part of the EPC is a recommendation report which will list the potential rating that your home could achieve, if you made changes. The report lists improvements that you could carry out and how this would change the energy amd carbon emission rating of the property.

  • * You can use this information to help cut our fuel bills
  • * Improve energy performances in your home.
  • *Help cut carbon emissions

 

Barchart of energy ratings

Who carries out the EPC's

Energy Performance Certicates are carried out by a fully quailified Domestic Energy Assessors (DEAs). The assessor will visit your property ans assess the age contruction and location of all the information that he takes down will be fed into a computor, which will calculate ratings and generate a certiciate. Either yourself or your letting agent can organize this for you. Each property will require an EPC which will last for 10 years.

How do I get one?

Either yourself or your letting agent can commission one from an accredited Dosmestic Assessor ( DEA).

DEAs can be found in your local directories.

 

TENANCY DEPOSIT PROTECTION SCHEME

Every private Landlord in England and Wales letting private residential property is by law required to join one of four government - authorised tenancy deposit protection schemes if:

The start date of the tenancy is after 6 April 2007 (excisting tenancies prior to this date will not be effected by this legislation) The tenancy is let under an Assured Short Term tenancy agreement.

The deposit must be registered within 30 days of receipt and the tenants informed which means in reality that if you use an agent like Black Katz where the deposit is collected @ 14 days before the move-in the timescale for the landlord is actually reduced to 16 days from the date of move-in.

As we do not hold deposits we would advise you, our Landlord to look into the schemes that are on offer. If you have any problems with this procedure just contact the office that you have been dealing with and they will guide you through the whole process step by step.

The four schemes are:

  • The Deposit Protection Service (The DPS) - Custodial and Insured deposit protection scheme – The custodial deposit protection scheme is free to use and open to all Landlords and Letting Agents. The service is funded entirely from the interest earned from deposits held. The Insured deposit protection scheme has no registration or annual renewal fee but charges from £15.00 per deposit registered. The Landlord retains the deposit and protection will be provided to the tenant(s) for the duration of the tenancy. Landlords and Letting Agents will be able to register and make transactions on line. Paper forms will also be available should internet access be an issue. The scheme will be supported by a dedicated call centre and an independent dispute resolution service.
    For more information, visit www.depositprotection.com or call 0844 4727 000
  • MyDeposits - This insurance-based tenancy deposit protection scheme enables Landlords to hold deposits. The fee for joining this scheme is £36 on line or £60.00 by post or phone and from £18.00 per deposit protected by the deposit protection scheme. The protection covers the duration of the tenancy and if the tenant(s) continues onto a Statutory Periodic Tenancy. A new protection fee is needed at the start of every new fixed term AST agreement.
    For more information, visit www.mydeposits.co.uk or call 0844 980 0290
  • The Dispute Service (TDS) is an insurance-backed deposit protection and dispute resolution scheme which has been established in 2003 to provide dispute resolution and complaints handling for the lettings industry. The scheme enables letting agents and landlords to hold their deposits.
    There is no fee for joining this scheme but will cost from £14.70 to register a deposit.
    For more information, visit www.tds.gd.com or call 0845 226 7837.
  • Capita Tenancy Deposit Protection this insurance based tenancy deposit protection scheme enables Landlords to hold deposits. There is not joining fee for this scheme but a charge from £15.00 per deposit protected by the deposit protection scheme. The protection covers the duration of the tenancy and if  the tenant(s) continue onto a Statutory Periodic Tenancy. A new protection fee is needed at the start of every new fixed term AST agreement.
  • For more information, visit www.capita-tdp.co.uk or call 08444 129968  

*If you are a landlord that lives overseas you have to join the custodial deposit protection scheme.

If a deposit is not protected, the landlord will be breaking the law. The Landlord will be unable to regain possession of the property using notice-only grounds for possession under the Section 21 of the Housing Act 1988. The tenant can apply for a court order requiring the deposits to be protected, or for the prescribed information to be given to them.

If the court finds your landlord hasn’t protected your deposit, it can order the person holding the deposit to either:

  • repay it to the tenant
  • pay it into a custodial TDP scheme’s bank account within 14 days

The court may also order the landlord to pay you up to 3 times the deposit within 14 days of making the order.

You can also Contact Natasha Eddy by email tash@blackkatz.com / 0207 284 3111

 

What is the Tenancy Deposit Scheme?

Tenancy Deposit Scheme

The government introduced a provision in the Housing Act 2004, whereby it will be a requirement that all landlords/agents that wish to take a monetary deposit will need to place the deposit into a Tenancy Deposit Scheme this scheme was introduced in April 2007. The tenancy deposit scheme is described in sections 212 to 215 and schedule 10 within the Housing Act 2004.

 

WHY?

It was introduced to safeguard tenants' deposits which are paid in connection with Assured Shorthold Tenancies against unscrupulous landlords and agents who withhold the deposits with no justified reason, it helps to facilitate with resolving disputes over the return of the deposit. Basically the scheme has been introduced to reassure tenants that the return of the deposit is a fair deal due to the fact that the agent or landlord is a member of scheme which uses an independent adjudicator.

 

How does it work?

There are two types of schemes on offer a Custodial Scheme and an Insurance based scheme.

  • Custodial Scheme — in this scheme the deposit is forwarded to a designated third party. It is then held by this party throughout the tenancy until the termination of the tenancy and is returned when all parties are happy with the appropriation of the deposit.
  • Insurance Scheme — this is whereby the landlord or the agent holds onto the deposit but the landlord or agent is involved in a scheme that ensures that should the landlord withhold the deposit then the scheme shall pay out.
  • For more information you go to www.communities.gov.uk

 

If you would like to sign up to Black Katz up to date newsletters please email: tash@blackkatz.com

 

Hmo Licensing

What are the changes?

Licensing will be broken up into 2 sections; mandatory licensing, additional licensing and selective area licensing which could be introduced by the LHA.

  • Mandatory Licenses— On the 6th April this year all properties that are more than 3 stories high, this does include basements and attics, which are occupied by 5 or more tenants where 2 or more tenants are unrelated will be a HMO and require mandatory licensing.
  • Discretionary Licenses—The legislation will allow LHA's to extend the definition of an HMO if they so wish, to any property with 2 or more unrelated tenants.

As the LHA can introduce additional licensing schemes and selective area licensing schemes landlords will need to ensure that they keep up to date with the actions of their LHA.

What are the license requirements?

All licenses will have provisions for anti-social behaviour by tenants which will ultimately be the responsibility of the landlords.

In addition to this the license will specify how many tenants can reside at the property and the minimum facilities required including the number of toilets, baths, showers and kitchens etc. for the number of tenants and the property needs to fulfill the safety requirements.

What happens if the property does not meet the standards?

If the property fails to meet the minimum standards required then the LHA may:

· Grant a license subject to a provision being made about ensuring that extra facilities are supplied within a certain period.

· Grant a license for a smaller number of occupants.

· Refuse to grant a license until the standards have been met.

Are there any fees and how long does a license last?

Yes there will be a fee. The fees vary between LHA's as it is up to them to set the fees. They currently vary between £300 to £500 however it has been stated that one is quoting £1100. These licenses will be valid for five years however it may be possible to get a shorter license.

When will this take affect?

Mandatory licensing will take affect on the 6th April 2006 however 3 months grace is being applied to ensure that Landlords have sufficient time to register and apply for a license.

Are there any penalties?

It will be a criminal offence to operate an HMO without a license and will be subject to a fine of up to £20,000. The tenants within your property may also apply for a rent repayment order whereby the tenant can apply for the landlord to repay all the rent paid whilst the property was run as an HMO without a license, up to a years back payment can be applied for. Another restriction will be that while a Landlord operates without a license he will be unable to serve a Section 21 to regain the property.

Are there any companies that are helping Landlords with applying for a License?

We do not currently know of any however we will post any information as soon as we find out. We would advise that you speak to your council as some councils are providing assistance with applications at an extra charge.

 

Frequently Asked Questions

We believe that it is vital that both Landlords and Tenants are aware of their legal rights and obligations. Below are some essential questions and answers.

  • As a Landlord do I have to perform an annual electrical safety check on my rented property?

    The Electrical Equipment (Safety) Regulations 1994 governs the safety requirements of electrical appliances. As a result Landlords and managing agents have a duty of care to ensure that the electrical appliances that they provide are safe to use. This regulation relates to both new and second hand goods; however, there is no mandatory checking period.

    If a fault occurs at a later date and tenants are injured and you are taken to court you will need to provide evidence that you took reasonable steps to ensure that the appliances were safe to use. It is strongly recommended that any second hand appliances that you have are professionally tested and that all your appliances have the relevant CE symbol on them. It would be advisable that you carry out checks on all your appliances and maintain records of when you carried out these checks, you will also need to provide all the instruction booklets for all the appliances and if you are in doubt over the condition of any appliance then get it checked by a qualified electrician.

    Should an incident occur and you are found to be guilty you can be charged both with a criminal offence and with Civil offence. The criminal offence carries a maximum fine of £5,000 and/or imprisonment.
     
  • I have a fixed 12month contract which is due to come to term in two months time. Do I still have to provide notice to our Landlord?

    At the end of a fixed term in an Assured Shorthold Tenancy, the tenancy will automatically become a periodic tenancy unless either you or your landlord has served notice or agreed to renew your tenancy. It is therefore advisable that you serve your landlord a month's written notice and the likewise for your landlord he/she should serve you the minimum of two months notice which should not expire any sooner than end of the fixed term.

    In some cases your landlord may have served a section 21 at the start of the tenancy stating that at the end of the 12month period they want to take possession of the flat, in such circumstances you will not need to serve notice.
     
  • Can I use my deposit as my last months rent?

    Deposit monies are given to landlords as a security against damage caused by the tenants during the tenancy and the settlement of any outstanding bills left by tenants. Therefore the deposit can not be used as the last months rent, some tenants find this unfair when they have dealt with unscrupulous landlords who withhold deposits. This problem has been tackled by new legislation written into the Housing Act 2004; Tenancy Deposit Scheme will be implemented to safeguard tenants' deposits. This new legislation was due to take affect in October 2006 however the date has been postponed and a new date should hopefully be announced this July. For more information on how this scheme will work please see our Legal Hot Points column.
     
  • My Landlord is withholding my deposit, what can I do?

    When a tenancy ends it is normal practice for the landlord to carry out a check out of an inventory or at least an inspection of the property. Once this has occurred then the landlord can make any necessary deductions for damage to the flat or furniture or for any outstanding utility bills or rent arrears. However, the landlord can not make any deductions for normal wear and tear; he/she can not withhold your deposit without providing you a written notice of why and what for. Should you disagree with the reasons or the landlord is not providing you with a reason you should contact the tenancy deposit protection scheme that your deposit is protected with.
     

For further information on this please see our Legal Hot Points column.

What is the Landlord responsible for?

  • Repairing obligations to the structure and exterior of the property; heating and hot water installations, sinks and other sanitary installations.
  • Ensuring that all gas and electrical appliances are safe.
  • Ensuring that the furniture and furnishings within the property meet the fire safety standards.

What is the Tenant responsible for?

  • Paying the rent in the agreed manner and taking proper care of the property
  • Paying the utility bills for the property as agreed with the Landlord, such as gas, electricity and telephone.
  • Paying council tax, water and sewerage charges as agreed by the Landlord.

Does a Landlord have to provide a Gas Safety Certificate for each new Tenancy?

NO. The legislation in place relating to the installation and maintenance of gas appliances (Gas Safety (Installation and Use) Regulations 1998) demands that all Landlords must ensure that any gas appliances within their rental property is inspected and passed annually by a CORGI qualified engineer. Failure to comply with the regulation carries a fine of up to £5,000 and/or imprisonment of six months (or more). The Landlord is responsible for keeping a record of all the Safety checks and provide the Tenants with a copy.

A Tenant has informed his/her Landlord about a repair, however the Landlord has failed to carry out this obligation, what are the Tenants rights?

Depending on how the disrepair occurred in the first place then the tenants rights are as follows. The Landlord is not responsible for the repairs arising from the damage caused by the Tenant. If the damage was caused by the Tenant then the Tenant would be responsible for paying and ensuring that the work is carried out. Apart from this the Tenant only has to do repairs if the terms in the Tenancy Agreement say so.

If the Tenant has tried on numerous occassion to get the Landlord to carry out his repairing obligations and has no success then he can either:

  • sue the Landlord in court
  • seek help from the local authorities as they have powers to ensure that the Landlord does the repairs
  • or in some circumstances, if the right procedure is followed then the Tenant could do the works and take the cost out of the rental payments. Tenants need to know that with holding rent would be in breach of their tenancy terms and the Landlord could take action to repossess the property.

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