Some letting agents misinterpreting landlords responsibilities regarding legionella risks to their tenants

There is a legal duty for landlords to assess and control the risk of exposure to legionella bacteria, but Health and Safety law does not require landlords to produce or obtain, nor does HSE recognise, a ‘Legionnaires testing certificate'.

• Legionella testing (or sampling) is generally not required in domestic hot and cold water systems and then only in exceptional circumstances.

• Misinterpretation of the legal requirements by some consultants and letting agents about landlords’ responsibilities to manage and control legionella in domestic premises may result in unnecessary financial burdens being placed on landlords and tenants.
• - Portable Document Form- Portable Document Format

Some letting agents are using the revised L8 ACOP to suggest that new legislation has been imposed on landlords of domestic rented properties for managing and controlling the risks of exposure to Legionella bacteria of their tenants. This is wrong, the legislation has not changed and misinformation/misinterpretation can impose unnecessary financial burdens on landlords where they are being charged for legionella testing and certificates they don’t actually need.

The law is clear that if you are a landlord and rent out your property (or even a room within your own home) then you have legal responsibilities to ensure the health and safety of your tenant by keeping the property safe and free from health hazards.

Section 3(2) of the Health and Safety at Work Act 1974 (HSWA) makes provision for relevant health and safety legislation to apply to landlords to ensure a duty of care is shown to their tenants’ with regard to their health and safety.

HSE has published guidance for landlords.

Possession for Rent Arrears to get a whole lot harder. Landlords will need to be more hands on than ever.

Unless otherwise announced, Courts are due to reopen on 25th June and the media predict a flood of Evictions to sweep England. 
Realistically, we already know that courts, when they reopen will priorities certain applications over others, for example, variation orders and requests to set aside existing possession claims.
After that we expect the courts to deal with the most serious possession claims first, such as Anti-social behaviour, then rent arrears claims and final S21 claims as these need no fault to be proved.

It is possible that prior to 25th June the court system or the notice period of 3 months could be extended.
But what we do know is that Robert Jenrick has announce a Rent arrears Pre-Action Protocol will be issued before the courts reopen.
So, what does a pre-action protocol mean for landlords,  at present we have not seen a draft of this new measure, nor do we know if this will be legally binding or just a “good practice guide”

So let’s look at the possibilities the protocol could bring.
The social housing sector has had a Pre-action protocol since 2015 and forms part of the Civil Procedure Rules and sets out the Court’s expectation of the parties’ conduct before a claim is issued
It is expected that the protocol that will be issued for Private landlords will follow a similar set up and will set out the process a Landord will need to follow before a court will entertain an application for possession.

The Social Landlords protocol is separated into 3 parts:
• Action before notice is served
• Action before court application 
• Action before court hearing

In all of these sections the responsibility is on the landlord to prove that have met and abused by the protocol before executing an action.
For example, before a landlord can issue a S8 notice for rent arrears, they must demonstrate that they have engaged with the tenant at the earliest opportunity, provided a rent statement every quarter, discussed the tenants financial circumstances, explored their eligibility to claim benefits or grants and discussed repayment options.
Only after all this has been satisfied can the landlord confidently serve a S8 notice.
After notice has been served this is not the end of the landlords duties, they must now prove ongoing communication with the tenant and evidence that they have supported the tenant to make any benefit claims and signposted them to independent advice organisations such as Citizens advice.

The courts also in the case of social landlords expect both parties to engage in Alternative Dispute Resolution (ADR) before a Landlord submits an application for possession to the courts.

For social landlords, failure to meet these requirements will lead to the court issuing them with a claim to pay all costs, the possession hearing can be adjourned and in some cases the judge will just strike out the claim, leaving the landlords to have to start the process from scratch.

We do not know how detailed the Private Sector Protocol will be and it is very unlikely to be retrospective. 
But I would recommend landlords start to follow some of the process of the Social Landord pre-Action protocol as general good practice, to ensure that when the protocol is published in the next few weeks, you are already ahead of the game.

View a copy of the Social Landord Pre-Action protocol here.
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-possession-claims-by-social-landlords

Another blown for Universal Credit tenants struggling to pay their rent

This one slipped under even MY radar.

The Department for Work and Pensions (DWP) announced on 10th April that Universal Credit rent arrears deductions have been suspended amid the coronavirus pandemic.

Third-party deductions, which typically see claimants have money they owe taken from their monthly benefit allowances, will be scrapped until 10 May.

Universal Credit claims have increased sharply as Covid-19 batters the economy. 

More than 1.4 million have applied for the benefit in recent weeks, according to the government, which recently took the decision to suspend evictions until June. 

A spokesperson for the DWP said: “We have received an unprecedented number of new benefit claims and have streamlined our operations to make sure people get the support they need during this time.

“As part of this, we have temporarily paused third-party deductions from [Universal Credit] – these will recommence on 10 May.

“We are in the process of explaining the changes to claimants via their online journal and to third parties, including housing providers who collect arrears via this method.”

The question is, How will this effect tenants who have been granted suspended possession orders on terms they pay the arrears and were having these deducted directly from their benefits.

Although this is only suspended for 1 month, this could have a huge impact on the tenants who have yet to be informed ( as DWP have said they are still in the process of informing both claimants and landlords) that the direct arrears payments have been stopped and are not aware they need to pay the deducted amount themselves 

With courts suspended until at least the end of June, will this impact on the number of eviction applications that are submitted to court?

Sadly the DWP have not thought this action through and risk jeopardising tenants security of tenure in their homes through no fault of their own

Source LandlordToday.

Don’t Panic!!!! Rent arrears see minimal increase since Lockdown

Many tenants have been laid off, furloughed, or have seen their incomes plummet because of the response to the coronavirus outbreak, and yet there has only been a 2% increase in late rental payments, according to new research. 

Given that many people have lost jobs or income because of the coronavirus pandemic, there were concerns that a higher number of tenants would not pay their rent, and so the findings from the study by property technology company Goodlord will be welcomed by some landlords. 

Goodlord analysed payment trends from a representative sample of 20,000 UK rental properties. 

In addition, only a small fraction of landlords are processing rental insurance claims, indicating that they are not yet out of pocket.
Since March 11th, there has been a modest increase in late payment behaviour - 2% more properties than usual still owing rent after seven days. This is an increase from 4% to 6%. 

Likewise, claims from landlords against Rent Protection insurance policies remain comfortably below 1% of rented properties covered. 

However, 84% of the 124 letting agents surveyed have reported confusion amongst tenants, with many not realising they remain under obligation to pay rent.

Of those surveyed, seven out of 10 - 70% - said that they have agreed payment plans with less than 10% of tenants so far, further indicating that the financial impact of the pandemic has yet to impact the ability of most tenants to meet their rental obligations. 

Tom Mundy, COO of Goodlord, said: “Despite only being a month since lockdown began, the late payment figures for the rental industry are so far fairly steady. They show that the overwhelming majority of tenants are still able to meet their obligations and we believe the government’s furlough scheme will no doubt be playing a key role in this continuity. 

“At the same time, agents and landlords are gearing up to offer more support in the months to come. Many agents, along with their landlords, are thinking about how they can offer flexibility, support, and guidance to tenants who might start to struggle.”

Source Landlord Today  

Til death do us part - But AST isnt the end

Death isn’t something we like to think about or even talk about the majority of the time, but as landlords this is something we may need to deal with at some point.

Sadly, the probability of having to deal with this situation has increased with Covid-19 effecting so many people.

In my professional capacity, I have had to deal with over 12 deaths of tenants, occupants or residents in all types of situations, from suspicious deaths, murders, suicides to ill health and old age.
But the key facts remain the same and that is how to correctly deal with the death of your tenant.

We will, for the purpose of this article assume the tenant has passed from natural causes and has an Assured shorthold tenancy (AST).

There are 2 main scenarios for you as a landlord to work through and I will address each in turn, so let’s start with the easy one.

Scenario 1. Tenant passes away and there are Next of Kin ( NOK)

The important thing to remember is that under English law the AST does not end on death of the tenant, but remains an active tenancy accruing rent until it is legally ended.

The first thing  you must do is contact the NOK and find out if there is a Will and who the executor is, from this point onward it is best to communicate direct with the executor rather than the NOK.

Next, you need to arrange for the tenancy to be ended, this can be done in 4 ways.
• Notice to quit from the tenants estate
• You serve a S21
• You serve a S8 using mandatory ground 7
• Deed of surrender
Realistically options 1, 2 & 3 are the best because they will limit the liability for rent owed and allow a practical timeline for you to get the property back in your possession.

Rent & Rent arrears
While the tenancy is active rent will continue to be due, the liability for this rent rests with the tenants estate until the AST is ended, this is why it is in everyone’s best interests to end the tenancy as quickly as possible, to minimise the estates liability, but also to minimise the debt owed to you, in case the tenant has little or no value in their estate.

Security deposit
At the start of the majority of tenancies, a security deposit will be taken and registered with one of the 3 deposit schemes, this deposit remains the tenants money at all times, or in this situation, it remains the money of the tenants estate and must be returned to the estate accordingly.
You will need to process the deposit in exactly the same way as if the tenant were still alive, so carrying out a check out inspection and requesting deductions for any damage or dilapidations or of course rent arrears.
This is another key reason why you need to have opened communication with the executor early on in the process, as it is likely NOK may not want to discuss or accept any deductions you may wish to make from the deposit.

Clearing the property of possessions
This can sometimes be a delicate situation to have to approach with grieving relatives. The fact that you need the property emptied so you can relet balances with the family’s  time to grieve and prolong a heartbreaking task.
As a guide I would suggest following local authority and housing associations protocol and giving the family 14 days to visit the property take what they wish and surrender the property back to you.
This will need to be communicated with the Executor of the Will incase there are any specific items that are addressed in the Will and need to be dealt with in a certain way.

Possession left behind
Once the family have visited the property and collected everything they wish, there maybe a number of items left that belonged to the tenant that the family do not want to take.
You cannot just throw these out.
You, as the landlord are still bound by Tort law to safeguard those possession and only dispose of them when you have permission or a set time frame has passed.
The law in this case is Torts (interference with goods) Act 1977, which explains that you must serve a Torts Notice on the tenants estate explaining that you will give them a set period of time to remove the good or you will then dispose of them.
If you get a letter directly from the Estate stating that the remaining possessions can be disposed of, then there is no need for the Torts Notice.

Scenario 2- No next of kin or Will
This scenario is not as unusual as you may think, as a society we are more disconnected than ever with many people living alone without immediate family.

So if a tenant passes away and have no NOK, this is known as Intestate, in this situation the local court of where the person died will appoint an administrator.
It is important to note, that it will be the court closest to where a person died rather than a court closest to where a person lived, this is important to note if a tenant dies outside of the home, may be on holiday or in a hospital miles away from the property.

If you do not know who the court administrator is, you can contact your local court and ask for the Pubic Trustee, who will be able to locate the administrator for your tenant and for which court you need to liaise.

All of the other points I raised in scenario 1 still apply, the tenancy will need to be ended and the administrator advised of rent due.
The court administrator cannot end the tenancy with a Notice to quit and if the tenancy has migrated to a periodic then your only resolution is to serve a S21 on the court administrator as the tenants representative and a copy to the property.

There is a slight difference with regards to possessions left in the property, as there is not NOK, you as the landlord automatically become an Involuntary Bailee and you have no legal right to dispose of any of the tenants possessions.
In this instance you must serve the Torts Notice on the court administrator and follow the Torts process to the end in reappear of removing any of the deceased tenants items.

No DSS to YES YES YES

For as long as I can remember landlords have always been adverse to accepting tenants whose income is state benefits
Deemed, unreliable and more likely than not to leave a landlord with thousands of pounds in rent arrears, landlords have always preferred an employed tenant claiming them to be reliable and with a guaranteed income each month.

What a difference a virus makes.
The small number of landlords who have been accepting tenants on benefits and those who made it a clear business model are now sitting pretty in these bizarre times

All of the reliable employed tenants with the regular income are now stamping their feet and demanding they live rent free, causing landlords sleepless nights and uncomfortable calls to their Mortgage lenders.

While landlords whose tenants claim benefits have not seen a flicker of this problem, in fact these landlords are also experiencing rent increases as the benefit freeze was lifted today and those savvy landlords who knew this was happening would have submitted S13s a month ago in readiness for the the increase in local housing allowance, although this increase is small in comparison to the usual increase, it is in this time of uncertainty, welcomed and guaranteed.

Now with thousands of tenants losing their jobs and having to claim benefits, will this finally change the mindset of landlords who were so set against any form of benefit as an income.
Now this is the only option, will Landlords be more open to accept the reliable income of the benefit system.

Local Housing Allowance ( LHA) is the level of benefit a person can get towards their rent, this is different for each area and is calculated on the 30 percentile of the rents for that type of property in that area.
With the benefit freeze, which lasted 4 years, this meant that market rents in some areas shot up well above LHA meaning tenants on benefits couldn’t afford to rent in some towns and cities or were left with a shortfall that they would need to ‘top up’, for landlords this would not fit the business model and they would want to get the highest rent possible, which from a business perspective is totally understandable.

However with the freeze removed many LHA rates would easily cover rent in most areas, with no need for a topup.

We don’t know how long it will take our tenants to find new jobs, pay off their arrears and be in a position to start paying full rent again, but those landlords who worked outside the box and saw the logic and stability of a tenant on benefits will not be experiencing as many problems as those who refused.

Will this see a change of mind for landlords and agents when considering tenants in the future, will the small print say ‘ Sorry No employed’

Coronavirus Act 2020

Last night the temporary legislation to be known as Coronavirus Act 2020 ( CVA 2020) received Royal Assent and became law.

The Act is 358 pages long and covers every eventuality, from Volunteer and worker rights, to births, deaths and marriages, but most importantly this new legislation brings a change to how and when landlords can serve notice on their tenants.

Previously the Government had said it would BAN all evictions for 3 months, however these provisions have been watered down.

S81, Sch 29 details the new notice periods for all tenancy types.
But in summary, from 26th March 2020 any landlords serving notice to a tenant, whether under S21 or S8 must provide 3 months notice, this includes grounds under AntiSocial Behaviour and S8 grounds which would have normally given 2 weeks or 1 months notice. 

S4 of Sch29 I feel is important, because it sets out how a Notice can be served, which is:
a) Leaving it at the property
b) Sending by post
Given that this is new legislation and will no doubt be challenged in court, I would advice landlords NOT to send any notice via any other channel other than that stated in the Schedule, this includes email.

The key point to remember here is that notices CAN still be served on tenants, but those notices will be a minimum of 3 months from today.
Court applications can be made for possession after the expiry of the 3 month notice, but at this stage we do not know if the courts will be open or what capacity they will have to process possession claims.

Rent Holiday - Free Rent period
Contrary to popular belief, the Government have never mentioned a rent free period, this seems to have been a social media phenomenon which evolved from the announcement of Mortgage breaks.

To be clear, within the details of the CVA2020 there is no provisions or interpretation of provisions for any rent holiday or non-payment period.
Rent remains due in full, however as landlords and business owners, it is strongly suggested that you work with your tenants to ensure some if not all rent is paid and where rent can’t be paid, you support tenants to claim all benefits they are entitled too and where necessary, agree a repayment plan for any rent owing, whether that be from and agreed deferment of payment or a lack of income.

Increase to Benefits
S77 of the CVA2020 sets out provisions that working tax credit and Universal credit standard element will be increased by £20 per week.
This combined with the increase in Local Housing Allowance would provided a single person over 25 years old approx £1100 per month income from benefits.

Business premises
S82 (1) provides business premises with protection from forfeiture and re-entry due to non-payment I’d rent during the relevant period, the relevant period being 26th March 2020 until 30th June 2020

All of these provisions are subject to change, as allowed for in the Act, including extending the 3 month notice period to 6 months, but this would be done after Government consultation, so would not happen over night. 

A new S21 form ( 6A form) has been published by the Government, the link is below.




https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/824957/Form_6A_INTERACTIVE__1_.pdf

FILE_5834.pdf