Legal implications if a tenant dies Without an Executor OR Will! IMPORTANT

The below is correct as of writing (13/11/2015 including fees quoted) however as per all UK law's, it is subject to change with no notice so please ensure you check the relevant pages on gov.uk before enacting upon the information given

We have recently had a tenant who passed away without a Next of Kin, or a will, which possession procedures after such an event are a little different and it is quite possible that some of us may not know this. So I am therefore posting the below steps you need to follow. You can of course also find the procedures on the gov.uk website

NB: If your tenant dies without an Executor OR will, then the tenancy is automatically transferred to the Public Trustee.

NB: You can’t take back a property automatically even if the tenancy was due to end and You risk being fined if you try to repossess a property without following the below:

To reclaim your property you must:

• Order a NL1 form (it has a cost of £5.05p) and will be sent to you via Royal Mail
• Post or deliver a letter to the tenant’s last known address saying you’re giving written notice.
• NB:you do not need to wait for the NL1 to arrive to issue the notice letter)
• You must then send a copy of the notice and the completed NL1 form to the Public Trustee
• Then you must register the notice with the Public Trustee

When writing the notice, you must address it to:

“The Personal Representative of [full name of the tenant who died] of [last known address for the tenant who died]”

We are informed by gov.uk that even though the ‘Public Trustee’ won’t accept photocopies of the official form, we could recreate our own which they would then accept? this didn't make sense to us so we therefore purchased an official form – for the sake of £5.05 in our eyes it didn't make sense to ‘test the system’.

The official NL1 form sold by Oyez at this link http://www.oyezstore.co.uk/LT-product-details.asp?id=4714

You will need to make a payment of £40 to register the notice. Pay by cheque or postal order, payable to ‘The Public Trustee’.

Recap of what you need to send to the Public Trustee:
Send the Public Trustee all of the following:

• A copy of the written notice
• The completed application form to register the notice
• Your payment for the application to register

The address to send the documentation and payment to:

The Public Trustee 

PO Box 3010 

London 

WC2A 1AX

What Happens Next?
You will be informed by letter of the outcome, and it will be decided that:

• Your application is registered - you’ll be told the date it was put in the register OR
• Your application is rejected, e.g. because your application is incomplete

The Public Trustee aims to respond within 15 working days of receiving your application and payment.

Finally, You will be able to search the Public Trustee’s register if your notice is registered. You will want to do this to check that you can legally rent the property again etc.

Prescribed Information and Section 21s (Additional to Deposit Prescribed Information)

My apologies in advance smile emoticon this is another rather large property related post, which I recommend anyone who has property in England reads. This post refers to an update to the Housing Act 1988...

The below is correct as of writing however as per all UK law's and government led initiatives, it is subject to change with no notice so please ensure you check the relevant pages on gov.uk before enacting upon the information given

From 1 October 2015: New requirements under the Housing Act 1988, referred to as The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, come into force and are summed up as succinctly as I can below:

There is now a requirement for landlord to provide ‘Prescribed Information’ in relation to your rental property’s documentation and certification.

However, by calling it prescribed information, the government will no doubt have caused confusion because to most landlords ‘Prescribed Information’ refers to tenancy deposits AND it still does – the below is a different ‘Prescribed Information’ you are STILL required to give to your tenant 'Prescribed Information' in relation to deposits.

NB: Should you not follow the new regulations you cannot serve a VALID Section 21 Notice to your tenant.

The New (additional) Prescribed Information Is:

1. A copy of a Valid Gas Certificate
2. A copy of a Valid EPC
3. A booklet written by the government called ‘How To Rent’ – Available from: https://www.gov.uk/government/publications/how-to-rent

NB: The new booklet states ‘That a copy of a Valid Electrical Certificate’ SHOULD be provided – you are still not ‘legally required’ to hand this over to the tenant but assuming you are crossing your t’s and dotting your i’s, I would suggest that you also provide a copy of your Electrical Certification IF you have one.

The new requirements as previously stated include a booklet which the government is not being providing in hard-copy to landlords, (only in printable PDF format) which means you will be required to print it – however you are allowed to provide it to your tenants by email should you wish.

The problem I foresee with providing the booklet via email, is that it is impossible to prove the tenant has received their copy. e.g. they could have given you an acquaintances email address claiming it was their own. The acquaintance opens it and deletes it before the tenant sees it! So even a read receipt does not prove that your tenant received the booklet – it just proves that they received the email in which the booklet is contained – and this no doubt will become a well-used excuse in court in the future.

With the above in mind I would always recommend you provide a physical copy and get it signed by the tenant, as part of your tenancy pack. Use a receipt form and get the tenant to sign that they have received the 3 required documents for this legislation.

The current regulation states that a landlord WILL NOT be able to legally serve a Section 21 Notice until the above has been provided to the tenant, therefore I also advise that you provide the booklet when you serve the Section 21 Notice – as this will then prevent any possible claims that the tenant didn’t receive the documentation

And at the moment it isn't 100% clear if you will need to provide future revisions to your tenants (e.g. when the booklet is updated) the general consensus is no, you won’t need to. But you will need to keep up to date with any changes to this legislation to ensure you don’t fall foul of any change which suddenly requests that you do provide your tenants with revisions.

I would also provide tenants with copies of the property’s certification upon every renewal of the certificate(s).

I just want to stress that as well as providing the new ‘Prescribed Information’ you are still REQUIRED to provide ‘Prescribed Information’ in regards to any deposit taken from a tenant. – sorry for repeating myself

Preventing Retaliation Evictions as per sections 33 and 34 of the Deregulation Act 2015 (ENGLAND ONLY)

Following on from my last post, I would again advise that if you have properties in ENGLAND, that you read the Deregulation Act 2015 to familiarise yourself.

The below is correct as of writing however as per all UK law's and government led initiatives, it is subject to change with no notice so please ensure you check the relevant pages on gov.uk before enacting upon the information given

From 1 October 2015 1, sections 33 and 34 of the Deregulation Act 2015 came into force in ENGLAND ONLY, “preventing retaliatory eviction”

Basically, the new rules have been introduced to protect tenants from their landlord serving a section 21 (two months’ notice), Not only can it prevent a section 21 being served, in certain circumstances relating to HHSRS (Housing Health and Safety Rating System) The new Act can even render a valid service of a Section 21 INVALID

Deregulation Act 2015

The new legislation creates two protection layers for tenants who fear a retaliatory eviction, if they have complained about the condition of their rented property.

The first protection states a Section 21 notice CANNOT be served within a certain time period when a landlord has had notice served on them under HHSRS (This is the case EVEN IF any works contained in the HHSRS notice are completed within the LHA’s given time-scales).

The Second protection states that any tenant that asks for works to be completed and a section 21 notice is subsequently served in retaliation to that request, then the notice may be rendered invalid.

If a HHSRS notice has been issued to a landlord in respect of a residential dwelling the landlord CANNOT serve the tenant with a section 21 notice for at least 6 Months from the day of the service of the HHSRS (For suspended HHSRS Notices – 6 months from when the suspension ends)

For this purpose, a HHSRS notice is classed as: -

• An improvement notice served under section 11 of the Housing Act 2004 (category 1 hazards), and/or 
• An improvement notice served under section 12 of the Housing Act 2004 (category 2 hazards), and/or 
• A notice served under section 40(7) of that Act (emergency remedial action). 

As always, it isn't black and white with new legislation and grey areas are created; e.g. we all understand the 6-month rule is now in place and we cannot issue a Section 21 Notice if we are served with a HHSRS notice under the above guidance, however there are exclusions when a section 21 CAN be issued and the 6-month rule can be disregarded:

If the improvement notice was served in error or is quashed
Where a HHSRS notice has been served but the works specified in the notice was caused by the tenant being in breach of their tenancy
The Section 21 Notice can be issued, if the “Property is genuinely on the market for sale.”

How to define whether a “property is genuinely on the market for sale”, is not included the legislation, therefore it appears that a court will need to be used to decide this very important factor, however, there is some guidance on what is NOT classed as “genuinely for sale”

For example, if the landlord intends to sell the landlord’s interest in the property to—

• A person associated with the landlord, 
• A business partner of the landlord, 
• A person associated with a business partner of the landlord, or 
• A business partner of a person associated with the landlord. (see the legislation to define these roles more thoroughly) 

NB: The legislation DOES NOT prevent the sale to a business partner etc., however the new retaliatory eviction rules will still apply to the new owner as well as the old landlord. It is also not stating the above is a conclusive list of what is classed as NOT genuinely for sale, e.g. Putting a house on the market on the same day as serving a Section 21 Notice and then taking it off the market the following day is not likely to be classed as “genuine”,

What is HHSRS? (Housing Health and Safety Rating System)

Simply put HHSRS is “a risk-based evaluation tool to help local authorities identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings. It was introduced under the Housing Act 2004 and applies to residential properties in England and Wales.”

For more information on HHSRS: Please see gov.uk

As mentioned there is also a second level of protection for tenants against retaliatory eviction for requested repairs to the property

In order for a section 21 notice to be classed as invalid, there are rules that must be followed in a specific order.
Second Level of Protection

A Section 21 Notice will be invalidated and any possession claim will fail when ALL of the following applies (and in the following order)-

1. Prior to the section 21 notice being given, the tenant made a complaint in writing to the landlord (or agent) citing the condition of the property.

2. Upon the tenant making a complaint, the landlord -

• Did not respond within 14 days, or
• Provided an inadequate response to the complaint (NB: the landlord is required to respond and providing the response is ADEQUATE, any section 21 served at that stage would be valid.) and/or
• Gave the tenant(s) a Section 21 Notice in relation to the property.

And following the response of the landlord (or lack of response after 14 days)

3. The tenant will then need to have made a complaint to their relevant LHA regarding the same issue (or mostly the same) as the complaint made to the landlord, and

4. The LHA has then served a relevant HHSRS notice in response to the complaint and the section 21 notice was not given before the tenant’s complaint LHA (it was given before the service of the HHSRS notice).

NB: the complaint can refer to any part of the property including common parts which the tenant is entitled to use (e.g. in HMO).

It is important to stress that above must be followed strictly! and if an order for possession is made before point 4 above (service of a HHSRS notice) even where the section 21 may have been given after a written request for repairs, the notice will still be valid.

Just to clarify, a landlord is still able to issue a Section 21 Notice to enable them to sell a property if required. Regardless of the above new rules, if the “property is genuinely on the market for sale” it will be classed as a valid Section 21 Notice.

Changes to SECTION 21's in ENGLAND ONLY (As part of the Deregulation Act 2015)

I would advise that if you have properties in ENGLAND, that you read the Deregulation Act 2015 to familiarise yourself.

The below is correct as of writing however as per all UK law's and government led initiatives, it is subject to change with no notice so please ensure you check the relevant pages on gov.uk before enacting upon the information given.

There are MASSIVE changes to Section 21 of the Housing Act 1988 from 1 October 2015 for new Assured Shorthold Tenancies (AST's) in England.

Under the new Deregulation Act 2015 which came into force in England from 1 October 2015, there are drastic changes which, if you haven’t already been informed, will affect how we, as landlords utilise Section 21’s and begin court proceedings.

For example, under the new Act, Landlords are now prevented from issuing a section 21 notice early in a tenancy (including the day of signing a tenancy) and there will also be time limits to enacting upon the notices

Currently this is applicable to ENGLAND ONLY, although we believe – and it is only speculation at the moment, but we are led to believe that similar if not the exact same rules will be introduced to Wales in the very near future possibly under the Renting Homes Bill (Wales). - more on this bill in the near future

So when can a section 21 now be served?

Any tenancy (Dwellings ONLY) which begins on or after 1 October 2015, CANNOT be served with a section 21 notice within the first four months of the tenancy. This is also applicable for tenancy replacements or renewals (For ease of reading a renewal is between the same landlord and tenant for "substantially" the same premises),

It is important to note that:
This does not apply where a statutory periodic tenancy has arisen at the end of the fixed term. So technically it is possible to reduce the four month limit by giving a shorter fixed term. e.g. you could issue a one month Fixed Term Tenancy (on or after 1 October 2015) and then once the tenancy has developed/changed to ‘statutory periodic’, a landlord could then serve a section 21 notice.

HOWEVER, as awesome as that sounds to us landlords (and even though the government headlined the changes to landlords using that statement) it seems that when introducing the new legislation the government overlooked the fact that:

“a court cannot order possession until at least six months has elapsed since the original tenancy”,

so it is unclear at the moment for what reason the above has been implemented,!

Referring back to the enacting upon the notices’ new time limits:

Where the section 21 notice was required to be 2 months (e.g. on a standard tenancy 6 month AST), Any notice you issue only stays in place for a maximum of SIX MONTHS from the date on which the notice was GIVEN (the date the notice was served) – Which means if you don’t act upon it and start possession within the 6 month specified time limit you will be forced to reissue another notice and wait for another 2 months before being able to begin court proceedings.

If the notice that you issued was required to be greater than the standard 2 months (e.g. where the rent is paid quarterly), then you must begin proceedings for possession within a maximum of FOUR MONTHS from the date of EXPIRY on the notice (the required possession date on the notice) – Meaning that if you don’t act upon it within the specified time limit you will be forced to reissue another notice and wait the specified timescales before being able to begin court proceedings.

DATES to NOTE:

As of writing, NONE of the above applies to an Assured Shorthold Tenancy (AST) granted before 1 October 2015 nor to any statutory periodic tenancy arising on or after 1 October 2015 where the original tenancy was granted before 1 October 2015.

As of 1 October 2018, the above will apply to ALL AST’s in England including any that were granted before 1 October 2015 (Including those that became Statutory Periodic).

Registering as a Landlord in Wales (As part of the Housing (Wales) Act 2014)

Wales: - the introduction of the Housing (Wales) Act 2014 is one of the biggest things to hit the sector in nearly 2 decades. And with the introduction of the new legislation comes a raft of changes which we as landlords will need to be aware of and undertake to be compliant of (yes along with everything else we need to be already be compliant and aware of)

I am going to cover various aspects of the legislation here over the coming few weeks - I will also discuss other areas of the UK however the below is (at the moment) only applicable to Wales!

So The first major point regarding the new act is the time-scales. The act is already being phased in however the parts of the act relating to private rentals and private landlords is due to be enforced from "Autumn" 2015 (Specifically from 23rd November 2015) - this date had been pushed back 3 times so we are now grateful that the new regulations are law and that everyone can now work from the same book of rules!

With the introduction of this new legislation, landlords and agents must within 12 months of the above date, comply and become registered and/or licensed via Rent Smart Wales. This will mean that:

1. All private landlords who have a rental property in Wales must register themselves and the addresses of their rental properties in Wales
2. Landlords who undertake defined letting or property management activities at a rental property in Wales MUST ALSO apply for a licence. 

However...If a landlord instructs an agent to do such work on their behalf, it is that agent who must become licensed

To become a licensed landlord in Wales, you need to prove your competence by undertaking a training course and taking a multiple choice question and answer test. The qualification in Wales is provided by Rent Smart Wales, but they have many different training providers - please visit the website to see more about the training and companies involved.

For your Information:
Any of our clients which use our Fully Managed Service (Kevin Green Lettings) we are fully compliant with the new legislation. Therefore as a landlord all you will need to do is register your property addresses.