FAQ-Residential Letting Questions

I’ve had a very bad experience with a tenant and would like to put him on a black list so that other landlords don’t have the same experience that I’ve had. How do I go about this?

We often get asked this question.

Although there have been several attempts by different organisations in the UK to build data bases which hold delinquent tenant information, to our knowledge none of these have been entirely satisfactory or successful. There are several reasons for this:

There’s always two sides to every story (dispute) and peoples’ emotions get involved which blows things up, sometimes out of proportion.

The only sure way a tenant can be added to such a list is if they have been challenged in court and found guilty, so to speak. Otherwise its one word against another.

As it is, very few tenant disputes actually come to court or go through a full dispute resolution process.

Discrimination, Human Rights and Data Protection laws have a bearing here, so these actions could have legal repercussions.

In any event, even if we were to put delinquent tenants (or even delinquent landlords) on such a list, how long should they stay there? Who decides who goes on and who comes off and when?

The process is frought with legal difficulties. Our advice would be to thoroughly vet your new tenants each time you re-let by having credit checks and referencing carried out and doing indentity checks.

If there are any doubts, don’t enter into an agreement, take rent up-front or take a guarantor.

Always do credit checks, referencing and identity checks.

See:

20 Steps to Successful Letting – LandlordZONE

Note: never rely totally on these standard answers. Before taking action or not, always seek professional advice with the full facts of the case and all documents to hand. LandlordZONE.co.uk

I am about to let my house for £30,000 pa, I understand that this has to be a bare contractual tenancy. Could someone tell me in what respects this differs from a standard AST. Would it give the tenant any extra rights?

This was the case until 1 October 2010, but since that date all residential tenancies, where the rent is below £100,000, on the day the changes came into force and subsequently, changed automatically into Assured Shorthold Tenancies.

There are two main consequences following on from this:

• All landlords of existing tenancies who took a deposit prior to that date must protect it as per the Housing Act 2004 legislation. and

• The procedure for evicting tenants will then become the procedure laid down in the Housing Act 1988, so landlords will need to serve a section 21 or section 8 notice first (not a Common Law Tenancy Notice to Quit as previously).
• The forfeiture procedure, previously available to ‘common law’ landlords, as is still the case with commercial tenants, will no longer apply.

Common-Law Tenancies:

A residential letting at a rent amount greater than £100, 000 per year cannot be an Assured Shorthold Tenancy (AST) nor even an Standard Assured Tenancy (SAT).

The Common-Law contractual tenancy is therefore implemented literally, with virtually no statutory overlay.

The only Acts that apply nevertheless are ones like:

a. the Protection from Eviction Act 1977;
b. s.11 of Landlord and Tenant Act 1985; and
c. the Notice provisions (Landlord’s name, address, etc.) of s.1/2/3 of LTA 1985 and s.47/48 of LTA 1987.

Other tenancies which come under the scope of Common Law (contractual tenancies) and are therefore excluded from statutory protection afforded by AST or SAT include:

Holiday Lettings – a holiday letting tenant has limited rights and is restricted to the duration of any stay.

Resident Landlords – where the tenant shares facilities (lodger) or where the tenant simply lives in the same building as the landlord (with separate facilities) he is a tenant with limited rights – sometimes known as “occupiers with basic protection.” If, however, the property is a purpose-built block of flats, where the landlord simply occupies one of the flats, then this would not be classed as a resident landlord situation – any tenancy would be an AST or SAT.

Tenancies at low or high rent - tenancies at no rent or very low rent – less than £250pa (£1000 London) or greater than £25 000.

Agricultural Tenancies – for land or buildings with more than 2 acres of land.

Crown Tenancies – generally tenancies created by government or government departments exclude AST or SAT statutory protection.

Educational Institution Tenancies – granted to students on specific courses of study.

Local Authority Tenancies – public sector tenants and those of housing associations (registered social landlords) have a greater degree of protection through what are known as “secure tenancies”. These were introduced by the Housing Act 1980 and 1985.

Business Tenancies - residential tenancies let by a company (i.e. a company is the landlord to an individual private tenant) are outside the protection of the Housing Acts – AST or SAT. Business Tenancies however – a tenancy let for business use such as a shop, offices or factory – have a degree of statutory protection under the Landlord & Tenant Act 1954 part 2, unless the landlord and tenant agree at the outset to exclude these provisions, in which case the tenancy is a purely contractual common law tenancy.

Licensed Premises Tenancies – resident landlords of licensed premises are excluded from the statutory protection of the Housing Acts.

See Also:

LandlordZONE – Residential Tenancies

LandlordZONE – Business Tenancies

LandlordZONE – Letting Agreements

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I let my property on an Assured Shorthold Tenancy (AST) for six months. It expires this month but my tenants are happy to stay. Do I need to issue them with a new contract?

You have two options here:

(1) Do nothing and the tenancy automatically becomes a Statutory Periodic Tenancy. This means a series of monthly tenancies (assuming rent paid monthly) with the original agreement still in force, i.e., all clauses and notice periods exactly the same as before.

(2) Sign up a completely new tenancy agreement.

With option one you have the advantage of not disturbing your tenant in any way, and not running the risk of triggering a move by asking to the tenant to commit to a further fixed term.

There’s no work involved for you, but you only have a month by month commitment – the tenant can leave at any time with just one month’s notice.

With option two you are asking your tenant to commit to a further fixed term, perhaps 6 or 12 months? It is also a good opportunity to increase the rent if this is appropriate, though you always run the risk of triggering a move with this.

It’s sometimes prudent to leave a good tenant in peace, hoping they will stay on as long as possible, and perhaps forgo any increase in rent you may have got.

If you use an agent to manage your property you may find they insist on a renewal, the main reason being they like to charge a renewal fee!

Bear in mind the deposit situation: if your deposit was not in a scheme on the original tenancy (taken before April 6th 2007) then it will need to go into a scheme on renewal.

This is not the case if the tenancy continues on as a statutory periodic one.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I have served a section 8 (s8) Notice on my tenant but don’t wish to start proceedings immediately. Can I wait without the notice expiring?

Having served notice for possession on your tenant you have 12 months to start your proceedings. See Section 8 (3) Housing Act 1988:

(3) A notice under this section is one in the prescribed form informing the tenant that—

(a) the landlord intends to begin proceedings for possession of the dwelling-house on one or more of the grounds specified in the notice; and

(b) those proceedings will not begin earlier than a date specified in the notice which, without prejudice to any additional limitation under subsection (4) below, shall not be earlier than the expiry of the period of two weeks from the date of service of the notice; and

(c) those proceedings will not begin later than twelve months from the date of service of the notice.

See:

Agreements & Forms – Section 8 Notice and Notes on Serving

Housing Act 1988

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

When taking a holding deposit from a prospective tenant, do I charge them an admin fee on top for the cost of credit searches, reference checking etc., or should the landlord find this fee themselves?

Holding Deposits are a good way to secure the commitment of a prospective tenant to a letting whilst the formalities of credit checking, referencing and agreement processing are carried out.

It means you effectively suspend the letting from the market in favour of the prospective tenant.

Don’t take too high an amount otherwise if the applicant fails to progress the tenancy a confiscation of a large amount would be deemed unfair by a court of law.

A suggested amount would be £50 to £150 maximum which should cover expenses for suspension for a few days.

Landlords/agents can legitimately retain the deposit providing the tenant is aware that this will happen if they fail to progress.

Therefore landlords/agents should issue a Holding Deposit Agreement/Holding Deposit Receipt, agreed and signed by both parties, copies to be retained by each party.

The Holding Deposit Agreement should make it clear what the arrangements will be regarding Rent, any Administration Fee, any Damage Deposit/Bond to be taken, and any Tenancy Deposit Scheme to be used, as well as providing a receipt for the Holding Deposit taken.

Administration fees are optional. All agents take administration fees, but not all landlords do – the choice is yours.

See:

Agreements and Forms – Free Holding Deposit Agreement

Tenant Verify Website - Tenant Checks & Referencing

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I have served a Section 21 (s21) Notice on my tenant but don’t wish to start proceedings immediately. Can I wait without the notice expiring?

Once a Section 21 notice has been served correctly it continues indefinitely, until such time as the tenancy is ended, either by the tenant giving notice and surrendering, or when a new tenancy agreement is signed for a further fixed term.

To terminate an Assured Shorthold Tenancy in England or Wales, at the end of the fixed term, the landlord should serve a Section 21 Notice 21(1)(b) (notice requiring possession) giving the tenant a minimum of two months’ notice.

The notice should name all joint tenants and ideally served on each tenant. Allow at lease 3 working days when notices are posted.

Providing the landlord serves the S21 notice correctly and all the paperwork is in order, including the letting agreement and, since 6th April 2007, the Tenancy Deposit Scheme requirements, a possession order is assured.

The notice can be served at any time during the fixed term, from day one (after the tenancy has been started) right up to and including the last day of the tenancy.

However, you cannot end a tenancy in under 6 months 9during the fixed term) with a S21 Notice, and where the notice is served with less than 2 months to go on a tenancy, the tenant can stay on beyond the end of the fixed term until the 2 months’ notice period expires.

Possession cannot be obtained during the fixed term unless the tenant is in breach of one or more of the terms of the agreement, as specified in the Housing Acts “Grounds for Possession”. In this case a Section 8 Notice (S8 Notice) is required which states the specific grounds for possession being claimed.

At the end of the fixed term the Assured Shorthold Tenancy will automatically become a statutory periodic tenancy. If rent is paid monthly, this means a month to month tenancy. In this case a perodic notice Section 21(4)(a) must be served.

In this second case the notice must give 2 full months’ notice ending on the last day of a tenancy period, AFTER which possession is sought. Therefore, in practice the tenant often gets more than two months notice, sometimes nearly three.

For example, if the fixed term tenancy ended on the 25th of August, the periodic tenancy would run from the 26th of the month and end on the 25th, and September, October etc. Suppose the landlord serves notice on the 15th of September. The periodic notice would end on the 25th of December, AFTER which possession could be sought.

See:

Agreement & Forms - Section 21 Notices and Notes on Serving

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

My tenant is 3 months into an assured shorthold tenancy. I requested access to the flat to do an inspection but my tenant has refused point blank. I now find he has also changed the locks. Can he do this? What can I do about it?

If your tenant decides to bar your entry to the property there is nothing you can do about it. If you persist in trying you could be accused of harassment, which is a criminal offence – not worth the risk.

The only time you could in theory gain access in this situation would be if there is a dire emergency – fire, gas leaks etc.

There is nothing in law which prevents the tenant changing the locks, except that you are entitled to have them returned back to normal when the tenant leaves, if you so wish.

To gain access for essential maintenance or for any other reason you should give your tenant/s at least 24 hours notice and ask their permission.

Most tenants are happy to give this but some may insist they are present when you have access. This can sometimes cause problems with timing especially if they are working. Fixing up times with workmen and tenants can them become troublesome, but you must comply.

If your tenant refuses access for essential annual gas checks this can be a real problem. Again, you should not persist to the point of harassment. Do your best to persuade, but after that you should put your requests in writing.

To cover yourself legally, send copies of letters to: (1) your local authority Environmental Health Officer or Rent Relations Officer, and (2) The Health & Safety Executive.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I understand that with the deposit schemes (DPS) an inventory is now very important. I am considering doing my own inventory but someone has told me that the inventory must be done by a professional independent inventory clerk. Is this the case?

You are absolutely right that inventories are very important if you put your deposit into one of the Tenancy Deposit Schemes (TDS).

The reason is that if there is any damage you need good evidence if you are to stand any chance of convincing the scheme arbitrator that you have a good claim against the deposit monies held in the scheme.

There is nothing to stop landlords doing their own inventories, and so long as they are thorough, they accurately record the condition of items in the property and they are agreed and signed on each page by the parties – landlord and tenant/s – they will be accepted.

It’s also a good idea to take photographic evidence. These must be printed and ideally two copies – one set attached to the agreement and one set attached to the landlord’s counterpart. All the landlord’s copies of photos must be signed on the back by the tenant and dated at time of entry.

However, there is nothing to beat a professionally prepared inventory done by an independent inventory clerk. This will without doubt carry more weight in any claims process, purely because it is independent and thorough.

Independent inventory companies operate throughout the UK and can be found on our Directory under Inventory Services – see below.

A good independent inventory will cost in the region of £75 to £120 at check-in depending where you are located and the size of the property. A check-out will usually cost between £50 and £100.

Some landlords and most agents will pass this cost on to their tenants by way of administration fees. Others will share this cost, for example, landlord paying the in-going and tenant paying the check-out.

A good way to get your tenant to make a big effort on cleaning and rubbish removal on check out is to say the check-out fee will be waived subject to the place being clean an tidy. This is a big incentive to tenants as they usually need every penny they can get when they are leaving a letting.

See also:

Inventory Services – LandlordZONE Directory

Tenancy Deposits – LandlordZONE

Download a FREE LandlordZONE Inventory

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Name and address of the landlord for service of notices – Section 47 & 48 Landlord and Tenant Act 1987 – What is the significance of this?

To fulfil the requirements of Section 47: Landlord’s name and address to be contained in demands for rent, and Section 48: Notification by the landlord of address for service of notices, you should ensure that your tenancy agreement contains the landlord’s contact details or those of his/her agent.

You will not be able serve notice of possession on a tenant when you have not given notice of your address and without this notice rent cannot be lawfully demanded.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

12 month agreement, one tenant leaves after six months. Arranged for friend to take her place. Agent now wants to charge a finder’s fee and set-up a new contract-payment roughly equal to one month’s rent. Is this normal and acceptable?

With a joint tenancy, if one of the tenants leaves, the agreement terminates and a new one needs to be set-up with all the new tenants – obviously if the agent is to do this he will want an administration fee, but there should be no finder’s fee involved.

Any fees payable will be governed by the agency agreement, so whatever the landlord has agreed to by signing the agency agreement will stand. All these things are negotiable so it’s important that landlords clarify and agree these matters before signing.

In the case of a joint tenant leaving early, there is a matter of that tenant being released from the contract (tenant contracted for a 12-month term) and allowing a new tenant to take over.

Technically, therefore, there is onus on the leaving tenant to pay for the administration involved. Also, as this is a joint tenancy, where all tenants are jointly and severally liable, the landlord could in theory collect from any one or all of the tenants.

Ideally, the tenancy agreement should anticipate this situation by spelling out exactly what the procedure is when one tenant leaves early.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Is it a legal requirement to have an electrical safety certificate for renting property? If so, who is responsible for it, landlord or agent, even if agent is not managing the property?

It is a legal requirement that an annual gas safety inspection is carried out by a CORGI registered operator, a gas safety certificate issued and a copy supplied to the tenant in all rented residential properties. A current certificate must be in force when any new tenants enters a property.

This is not the case with electrical systems and appliances – there is no legal requirement at present for an annual check and certificate.

However, there is a legal requirement that the landlord provides a safe building, and should there be an accident due to faulty or sub-standard electrical system or appliances, the landlord could find himself liable.

It is, therefore, in the landlord’s own interests to have electrical systems checked by a competent electrician every 5 to 10 years. All Electrical appliances should be visually checked at the start of every tenancy and if there is any doubt, properly tested. Any used electrical appliances introduced by the landlord should be PAT tested.

Ideally, for safety’s sake, the electrical system should be brought up to the latest Electrical Regulation standard, with an earth leakage circuit breaker (ELCB) fitted at the consumer unit.

As a professional, the agent should always ensure that there is a gas certificate in place, even for let-only. They should also warn landlords about electrical safety.

See also:

Electrical Safety – LandlordZONE

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Is it legal to have these tiles in the kitchen of a rental property?

There are currently no regulations specifically banning the use of polystyrene ceiling tiles in existing rented property.

However, it is unlikely that local authority fire officers and environmental health officers would approve their use in a House in Multiple Occupation (HMO).

Also, under current building regulations these would not be legal in new properties as walls and ceilings are now required to have a class ZERO rated surface, banning the use of polystyrene, gloss paint, vinyl and even some types of flocked wallpapers.

Early types of these tiles where a real fire hazard. When they burn they spread the flames quickly, give off toxic fumes and drip blobs of hot molten plastic, which can potentially cause terrible skin burns.

Later types have fire retardant chemical additives, but it is still advisable to remove them to make sure you as landlord meet the latest safety standards.

Landlords have a duty of care for the safety of their tenants. But, not only do you want to avoid injury to occupants, you will want to minimise the risk of extensive fire damage to your property should a fire accident occur.

See also:

YouTube Video – Polystyrene Ceiling Tiles

©LandlordZONE All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Is it a legal requirement to provide smoke alarms in my rental property?

The Building Regulations (1991) state that all properties built since June 1992 must be fitted with mains operated interlinked smoke detectors/alarms with at least one detector per floor level.

It is also the case that all Houses in Multiple Occupation (HMOs) are required to supply mains operated interlinked smoke alarm system.

In the case of older single family rental properties, technically there is no legal requirement for landlords to provide a smoke alarm.

However, it is strongly recommended that landlords do provide at least a battery operated smoke alarm or alarms in their rented properties.

Where landlords do provide battery operated smoke alarms they should have a clause in the agreement making it clear that it is the tenant’s responsibility to check their operation and replace the batteries as and when necessary.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Am I right in saying that if a landlord does not provide an address to his tenant then rent is not legally due?

Yes, basically you are right:

Section 48 of the Landlord & Tenant Act 1987 states that an address (not necessarily the landlord’s) must be supplied for service of notices, failing which rent is not legally due.

Also, under the provisions of the Landlord & Tenant Act 1985, tenants of dwellings in England & Wales, who make a written request to an agent, have a right to the landlord’s name and address.

This information must be supplied within 21 days or there are statutory penalties on the landlord. The legislation refers only to the landlord’s name and address, not his telephone number or any other form of contact details.

See:

Landlord’s Address – LandlordZONE

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

What risks am I taking as a landlord regarding public liability and injury claims from my tenants and visitors to the property?

Since the advent of no-win, no-fee legal practises there’s been a whole industry created around personal injury claims against employers and property owners, landlords included.

Landlords must make sure that their premises and the equipment they supply in them are in a safe condition – you should ensure that you supply copies of all operating and safety instructions to tenants when they take up residence and you should carry out your own risk assessments between each tenancy. You should also ensure that annual gas checks and regular electrical system inspects are carried out.

Inspection certificates and risk assessments provide excellent evidence that you have fulfilled your duty of care as a landlord, should there be an injury claim against you. Having done that, the onus is on your tenants to tell you as landlord immediately if the premises become dangerous in any way.

If you do not make safe a defect that has been reported to you, or one you should know about, you may be sued for compensation if anyone suffers personal injury as a result of the defect.

Examples of accidents which can result in claims might include:
- falling on or over defective flooring and carpets, particulalry stair carpets,
- loose or broken hand rails,
- scalds from defective plumbing,
- electrocution from unsafe appliances and wiring
- injuries by sharp objects or dangerous fixtures and fittings.
- glass doors have not had safety-glass fitted
- areas that have not been constructed, maintained, repaired to correct safety standards
- iupboards have fallen off the wall
- ieaking pipes or roofs and falling ceilings
- illness or diseases cause by damp, condensation, and carbon monoxide poisoning.
- any other type of hazard

It is very important that as a landlord you carry the correct public liability insurance. You should check with your insurers that this is the case with your landlord’s policy – remember, ordinary household insurance policies are not suitable for tenant properties.

©LandlordZONEâ All Rights Reserved – never rely totally on these standard answers. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I signed up a new tenant with a good professional job and excellent references. We completed all the formalities including a detailed inventory. He paid a month’s rent and deposit and took over, placing belongings in the property but he has not taken up residence. After a while he telephoned to say he did not want it and had pushed the keys through the letter box. What should I do?

He never actually took up residence, so did a legal tenancy actually exist at all? Can he be held to this tenancy?

The answer is almost certainly yes: a tenancy exists because all the requirements for creating a legally binding contract existed. He even placed possessions in the property though he did not actually reside there.

Putting keys through the letter box has been held to be an offer to surrender, not surrender in itself. The landlord would need to do something to imply he had actually accepted a surrender of the tenancy – so care must be taken here if the landlord does not want to end it.

If the boot had been on the other foot and the landlord wanted to call the whole thing off, then there would be no chance at all.

However, as he did not reside at the property, the tenancy is not technically an Assured Shorthold Tenancy (AST) under the requirements of the Housing Acts 1988 and 1996.

What it is, therefore, is a Common Law Tenancy.

This raises an interesting issue with the deposit. As this tenancy is not technically an AST the landlord can hold the deposit and if necessary claim it in lieu of rent pending some sort of resolution. He can hold the tenant to the tenancy in any case but if he does take up residence then clearly the landlord will be obliged to meet the requirements of the Deposit Protection Scheme (DPS).

The options are: (1) let the tenant off the contract. (2) let the tenant off with an agreed cash settlement (3) allow the tenant himself to find a replacement whilst paying rent (4) find a replacement on behalf of the tenant and insist the rent and re-letting costs are paid.

Another aspect to this situation: who pays the Council Tax and Utilities and any extra insurance premium for an unoccupied property? Clearly, in cold weather the house will need heating or the heating system will need to be drained down – in either case costs are involved.

In the case of Council Tax, in order to be liable for Council Tax you must be resident in the building (and hold a tenancy of 6 months’ or more) otherwise the liability falls on the owner (Local Government Finance Act 1992 s6). Therefore the landlord will be charged Council Tax, subject to the 6 months’ tax-free period when a property is empty and substantially unfurnished.

The landlord may likewise be charged by the utilities companies – water, gas and electricity – unless the tenant signed up contracts – unlikely in this case.

Landlords need to be aware of all this if they enter into a tenancy which is less than 6 months or, as in this case, the tenant never takes up residence. However, they can pass on all the charges to the tenant providing their agreement allows this – the tenancy agreement should clearly state that the tenant is liable for all these charges.

Note: never rely totally on these standard answers. Before taking action or not, always seek professional advice with the full facts of the case and all documents to hand. LandlordZONE.co.uk

My tenant has badly scratched a stainless steel hob although it is still in working order – how much deposit can I retain?

Preumably your deposit is with one of the schemes – so you will need to make a good case for a claim

It will help if you have a good inventory and additional signed photographs will be even better.

If the scratches are detrimental to the general condition of the rest of the accommodation and are the result of careless use as opposed to normal use and general wear and tear, you are entitled to claim.

You need to get a cost for the part to be replaced from the manufacturer, plus fitting costs.

You then need to apportion for age and contribution.

For example, if we say a reasonable working life of the hob would 10 years, perhaps a little more, then you would apportion contribution by its age.

If it is 5 years old, for example, on that basis you would expect to contribute 50% each – landlord and tenant.

You will need to get the job done and then submit your invoices along with your claim.

If you make a good case the adjudicator hopefully will rule in your favour on this.

Note: never rely totally on these standard answers which are primarily based on England and Wales. Before taking action or not, always seek professional advice with the full facts of the case and all documents to hand. LandlordZONE.co.uk

My daughter is off to university and we have bought her a student house, which she and her friends will share. Can her friends be classed as lodgers even though she pays rent to us?

For a lodger situation to exist in law, the landlord must live on the premises (main residence) and share facilities with the other occupants. Also, the agreement (licence) must make it clear that the occupants do not have exclusive possession of their own rooms – the landlord has access for cleaning etc.

There are some strong advantages to having the occupants as lodgers (as opposed to tenancies which give additional rights) since, if your daughter’s friends don’t get on, it is much easier to ask someone to leave by giving a reasonable amount of notice (30 days, say) – no need to go through s21 possession procedures.

Also, being lodgers, the occupants are not affected by the Assured Shorthold Tenancy statutory rules and therefore no need to comply with the Tenancy Deposit Scheme – the landlord (your daughter in this case) can hold the deposits.

But, your daughter is your tenant, not the landlord, so how can you do this?

One option is to have your daughter as a tenant on an AST, paying rent to you the landlord – with no deposit. Your mortgage provider may well specify an AST agreement. The agreement should include a clause which allows your daughter as the sole tenant to sub-let. That way, as an tenant and underlandlord, she can sub-let to lodgers using lodger agreements (licences)

If, for example, you decide to exempt your daughter, as your tenant, from paying rent, you could also avoid the AST regulations on the low rent exemption. This would mean that her tenancy is not an AST but a common law tenancy, giving you more flexibility and also exempting you from the Tenancy Deposit Scheme.

Not all students would be happy to be put in this position, as your daughter would be, giving them this responsibility, but it does have some advantages.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I am a joint tenant with my friend who is leaving at the end of our 6-month fixed-term. I would like to stay on for a few months because I have another friend coming to stay with me, but my landlord is refusing, saying I must leave at the end of the term or sign a new 6 month agreement and pay the full rent. What rights do I have?

Your landlord is correct.

When one tenant involved in a joint tenancy leaves, effectively that tenancy is at an end. In no way can it continue as a periodic tenancy, as would be the case if both joint tenants where still in occupation after the fixed term ends.

Therefore, you have no right to stay on beyond the fixed term. If you stay you will be a tresspasser. The landlord could apply to the court for a possession order and have you evicted.

You could stay on if the landlord agrees to a new tenancy, either with you as a sole tenant paying all the rent, or as a joint tenant with someone else.

However, should you offer or pay rent at the end of the fixed term, and should the landlord accept the rent, either by accident or by design, then a new AST will be created, albeit without a written agreement.

What is more, this will be a new AST on a perodic basis from the start, giving you a new minimum 6-month term, if you want to stay that long.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I have heard that an action against joint tenants is limited to the first four listed on the tenancy agreement. Is this correct – does not seem to square with joint and several liability?

Section 34 of the Trustee Act 1925 says the maximum number of people who can have a legal interest in land is 4.

Therefore, when more than 4 are named, the first four hold the legal interest on trust for themselves and others in equity.

So if there are 6 Students say, who are named as tenants under the tenancy agreement, only the first four are bound by legally enforceable covenants, e.g., to pay rent etc, so as far as the Landlord is concerned, only the first four can be sued for any breach of those covenants.

The fifth and sixth students would have legal liability between themselves and the first four named tenants.

The landlord would have to sue either one or all of the first 4 named tenants and then they would bring in the other 2 tenants.

If the bottom two were the ones failing to pay the rent, the landlord would sue the first four and they would then bring in the other two.

If the two failing payers are actually part of the first four, then they could be sued outright but the other two of the four would be jointly and severally liable in any case!

Therefore, only the first four occupiers can be tenants.

One answer for landlords is to make, by way of a supplemental agreement or as part of the main agreement, the additional occupiers jointly and severally liable for the other’s (the 4 tenant’s) obligations, even though they are not tenants.

Alternatively, where a house is let to, for example, 7 occupants – 4 on one level of the house could be on one joint tenancy, with the other three on a different level of the house on a separate joint tenancy.

The implications for using the s21 possession procedure are that the additional (permitted occupiers, as would be the case with children) cannot be served notices themselves, but their occupation rights would end if the main 4 tenants rights end.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

Is there any limit to the number of rooms I can rent out to lodgers, and are there any planning implications ?

There are several parts of legislation in England and Wales that affect this question. Perhaps four main ones apply: Health & Safety (HHSRS), HMO, Overcrowding and Planning Rules.

HMO:
The Housing Act 2004 schedule 14(6) states that the maximum number of lodgers living in a property, before it is classed as an HMO is two.

So, if three or more lodgers live in a property, in addition to the landlord and his or her family, the property will be defined as an HMO.

To decide whether the property is a licensable HMO it must be classed as a Prescribed HMO meeting these conditions:

1. The HMO or any part thereof comprises three stories or more
2. It is occupied by five or more persons
3. It is occupied by persons from two or more households.

Overcrowding:
If accommodation is much too small for a household it may be considered to be overcrowded under the law. A home may be legally overcrowded if there are not enough rooms or space for the number of people who live there.

Currently (2009) there are two applicable standards in force: the Statutory Overcrowding standard under the Housing Act 1985 and the Crowding and Space Hazard, assessed under the Housing Health and Safety Rating System (HHSRS).

Statutory Overcrowding (Housing Act 1985):
Overcrowding can be caused by too many people living in a room or too many poeple for the size of the room.

If two people of the opposite sex have to sleep in the same room, the accommodation will be overcrowded unless the two people are:

- a married or cohabiting couple, or
- at least one occupant is under ten years old.

The number of people of the same sex (unless they are a same sex couple) who can sleep in one room is restricted by the size of the room.

Rooms that are counted include living rooms, bedrooms and large kitchens. Space and floor area calculations:

- children under one year old are ignored
- children under ten years old and over one count as a half
- rooms under 50 square feet are ignored.

As a general rule:

1 room = 2 people
2 rooms = 3 people
3 rooms = 5 people
4 rooms = 7.5 people
5 or more rooms = 2 people per room.

Also, the floor area of a room determines how many people can sleep in it:

- floor area 110 sq feet (10.2 sq metres approx) = 2 people
- floor area 90 – 109 sq ft (8.4 – 10.2 sq m approx) = 1.5 people
- floor area 70 – 89 sq ft (6.5 – 8.4 sq m approx) = 1 person
- floor area 50 – 69 sq ft (4.6 – 6.5 sq m approx) = 0.5 people.

Crowding and Space Hazard (HHSRS):
The HHSRS is a new tool for local authorities to tackle overcrowding.

HHSRS assesses deficiencies in a home in terms of the impact on the occupiers. Local authorities use the system to risk assess properties for 29 health and safety hazards, one of which is crowding and space.

“a dwelling with one bedroom is suitable for up to two people regardless of age; two bedrooms for up to four people; three for up to six people; and four for up to seven people. Living rooms and kitchens are also considered. Whether a dwelling is actually overcrowded depends on the age and circumstances of the family in it.”

A dwelling may not match the ideal, but unless the hazard is a high-scoring Category I, the authority’s decision to act is discretionary.

Planning:
In some cases, especially where an HMO is being created, the property may be subject to Planning and Building Control rules, especially in respect of fire regulations.(The Regulatory Reform (Fire Safety) Order, June 2005, Effective 1 October 2006)

HMO also have specific management rules (Statutory Instrument 2006 No. 372 The Management of Houses in Multiple Occupation (England) Regulations 2006) and are subject to annual Fire Risk Assessments. If in any doubt and before you commence any work or lettings you should contact your local authority planning and evironmental health departments and/or fire officer.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

My Assured Shorthold Tenant has sub-let my residential property to another tenant. How do I deal with this?

Your letting agreement should have a clause that prevents sub-letting, most do, therefore your tenant is in breach of contract – the tenancy agreement.

As your tenant is on an AST under the Housing Acts 1988 and 1996, he would normally be protected under the statutory rules.

However, this is no longer your tenant’s main residence, therefore this tenancy is no longer an AST. It is in fact what is known as a Common Law Tenancy, which is purely contractual in nature. As the tenant is in breach of contract you can end the tenancy without the major restrictions imposed on ending a statutory AST.

You must end the tenancy legally before either agreeing a new tenancy with the sub-tenant or proceeding to evict the sub-tenant.

As the six months’ minimum AST term no longer applies, you can take immediate court action against your tenant for breach of contract and for the eviction of the sub-tenant, if you require this.

Also, as this is no longer an AST, the local authority can bill you as landlord directly for the Council Tax. If they do this you should in turn be able to claim from your tenant, providing your tenancy agreement says he is liable for this.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

How can I increase the rent for my tenant who is on an Assured Shorthold Tenancy? Can I raise the rent and if so, how often?

Usually an assured shorthold tenancy (AST) involves a short letting so rent increases don’t come into it.

If you have a 6 month or 12 month tenancy and your tenant wishes to renew, you can issue a new tenancy on a higher rent. Your tenant then has a choice: accept the new tenancy on the higher rent or leave and find somewhere else.

You can raise the rent but this depends what your tenancy agreement says. Arrangements made for paying and reviewing the rent should be included in your tenancy agreement.

For a fixed-term tenancy the agreement should say it will be fixed for the length of the term or that it will be reviewed, how it will be reviewed and at what intervals.

If your AST is a contractual periodic tenancy from day one, again the agreement should say when and how it will be reviewed.

Increasing the rent can sometimes trigger a move, so if you have good tenants and you don’t want them to leave, think carefully before you ask for more rent. It’s often wise to take a little less in rent than have a long void period with no rent coming in at all.

However, some landlords don’t renew their fixed-term tenancies – they allow them to run-on after the fixed-term into a statutory periodic tenancy – month to month if the rent is paid monthly. This can go on indefinitely if the tenant stays.

In this situation the rent can fall well behind the market rent, so at some point you will want to increase it.

Where the tenancy agreement is silent on rent reviews Section 13(2) of the Housing Act 1988 makes provision for rent increases in perodic ASTs. There is a prescribed form for this purpose and specific rules which must be followed.

You can issue this notice if you want to increase the rent but you should bear in mind:

If you charge more than a Market Rent your tenant can appeal to the Rent Assessment Committee for a determination of rent, which may be a lower amount than you are asking. They will fix a new rent which will be enfoced for 12 months.

Secondly, if your tenant is claiming Housing Benefit you should be aware of the amount payable under the Local Housing Allowance when fixing your new rent. This may affect the amount your tenant claims and pays.

The rules for the Tenancy Deposit Scheme (Housing Act 2004) mean that any tenancy commencing after 6th April 2007 will require the deposit to be protected in the scheme. If you are holding a deposit it must be lodged with the scheme.

Therefore, landlords with tenancies prior to this day may wish not to create a new tenancy, but to increase the rent instead.

What is the difference between a fixed-term, a statutory periodic and a contractual periodic tenancy?

A fixed-term tenancy is created for a specified length of time – 6 or 12 months for example. Both parties are committed to this period – the tenant must pay rent for the full term and the landlord cannot regain possession during this fixed-term. With an AST the tenant has a minimum tenancy term of 6 months in any case, but the contracted period could be shorter.

When tenants stay on after the end of the fixed-term the tenancy will automatically (the landlord does not need to do anything) become a statutory periodic tenancy – at tenancy protected by the statutory rules of the Housing Acts 1988 and 1996, running in periods based on the rent payment periods – month to month for a monthly tenancy.

In the case of a contractual periodic tenancy, this is where the AST is periodic from day one – it is contracted and agreed that way.

With a perodic tenancy the landlord does not have the security of a longer term let.

The tenant can leave with just one full period’s notice in writing – the notice to quit must be a full tenancy period ending on the last day of a tenancy period.

In the case of weekly periods (rent paid weekly) the notice period is 28 days.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

What is the difference with Assured Shorthold Tenancies between a fixed-term, a statutory periodic and a contractual periodic tenancy?

A fixed-term tenancy is created for a specified length of time – 6 or 12 months for example. Both parties are committed to this period – the tenant must pay rent for the full term and the landlord cannot regain possession during this fixed-term. With an AST the tenant has a minimum tenancy term of 6 months in any case, but the contracted period could be shorter.

When tenants stay on after the end of the fixed-term the tenancy will automatically (the landlord does not need to do anything) become a statutory periodic tenancy – a tenancy protected by the statutory rules of the Housing Acts 1988 & 1996, running in periods based on the rent payment periods – month to month for a monthly tenancy.

In the case of a contractual periodic tenancy, this is where the AST is periodic from day one – it is contracted and agreed that way.

With a perodic tenancy the landlord does not have the security of a longer term let. The tenant can leave with just one full period’s notice in writing – the notice to quit must be a full tenancy period ending on the last day of a tenancy period. In the case of weekly periods (rent paid weekly) the notice period is 28 days.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.

I have a tenant who will not allow workmen access to the property for repairs. I have notified the tenant by telephone and in writing giving at least 48 hours notice, but the engineer attends to find there’s no access. This is costing me money in call-out charges. What can I do?

This can be a problem for landlords, especially if the access is required to do gas checks, which is a legal requirement on the landlord.

However, landlords or their agents do have a legal right to enter the property to carry out necessary maintenance and repairs.

Of course the tenant must be given sufficient notice of required access at reasonable times to suit both parties, and the tenant has the right to be present when the work is done, but the tenant cannot refuse entry.

In theory the landlord can charge the tenant for the costs involved in missed appointments, particularly if this is stated in the agreement, which it should be, but that’s a matter of judgement on the landlord’s part.

Regardless of whether your agreement says anything about access, Section 16 of the Housing Act 1988 – Access for repairs – states that:

“It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.”

Where the tenant refuses he is in breach of contract and the landlord can apply for a possession order using a Section 8 notice (Housing Act 1988) under Ground 12, which states:

“Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.”

This is a discretionary ground (the judge can decide whether a possession order is appropriate) so:

1 – You need very good evidence that this is a persistent problem,

2 – You cannot guarantee getting possession.

3 – The tenant may counter claim with spurious accusations against you, the landlord.

©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England & Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.