Last Updated: February 7, 2024
Evidencing compliance with prerequisites for a claim under Section 21 can be difficult. It is important to have documentary evidence in support.
The landlord in this case granted an AST that commenced on 21/12/2009. A deposit was paid in connection with the tenancy and was protected on 05/01/2010, with Prescribed Information (“PI”) given to the Tenant on 21/12/2009. The PI was contained within the AST and the deposit was protected with ‘MyDeposits’. The managing agent confirmed the deposit ‘leaflet for tenants’ was also provided, but a copy was not retained on their file.
On 02/09/2011, the deposit was transferred to and protected with the Deposit Protection Service (“DPS”). A copy of the initial deposit protection certificate was not retained; therefore, the landlord relied on the latter DPS certificate as evidence that the deposit was/remained protected.
The tenant stated they were seeking assistance from the local authority and wished to be rehoused and did not intend to defend a claim for possession whereby the landlord commenced proceedings.
However, local authorities have their prevention teams legally trained to investigate the validity of Section 21 notices and proceedings. If a homeless applicant has a defence to a Section 21 claim, it must be advanced. If a tenant chooses not to advance a defence, often in the hope of securing social housing, they are likely to be found intentionally homeless. The definition of “intentionally homeless” is “doing something, or failing to do something, that results in homelessness”. The courts have held that failing to advance a valid defence that would have meant they kept their tenancy is failing to do something which results in their homelessness. The authority is then entitled to find them intentionally homeless and offer no housing assistance.
Due to the risk of being deemed “intentionally homeless”, it means there is greater scrutiny of Section 21 applications than perhaps there once was. In addition, with the pending and long awaited Renters Reform Bill, and the proposed abolition of Section 21, we anticipate these claims will be more closely examined in the future.
After proceedings were issued, the tenant filed a defence that denied having received any PI following the transfer of funds to the DPS and opposed the landlord’s claim under Section 21 of the Housing Act 1988 on the grounds of non-compliance with the deposit protection rules.
The landlord was unable to provide evidence that the PI had been served following the transfer to DPS in 2011 but did have evidence that a renewal AST (including the requisite PI) was drafted and served on the tenant in January 2020. Unfortunately, the renewal AST was never agreed/signed and neither the landlord, nor their agent, retained a copy of the terms and conditions that were provided. As such, the only evidence of compliance was a witness statement confirming the same. Without copies of the documents given or contemporaneous files notes, it could not be said that the prospects of successfully proving the claim were sufficient and the claim was discontinued. The remedy available to the landlord was to return the deposit in full, then serve a new Section 21 and begin the process again.
Here at Legal for Lettings, we have experts to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property. If you want to see how we can help, get in touch at contact@legalforlettings.co.uk.
Last Updated: February 7, 2024
The number of documents that landlords must serve to ensure compliance with their legal obligations is continually increasing, especially regarding possession recovery under Section 21 of the Housing Act 1988.
Due to this, individuals and businesses are more reliant than ever on modern technology to achieve compliance and satisfy their obligations; however, these methods are not without risk despite their ease of use.
This blog considers the risks associated with using an online portal for serving prescribed documents on tenants who occupy premises under an Assured Shorthold Tenancy.
In a recent matter on which we have been instructed, the How to Rent Guide (“HTRG”), as well as other requisite documents which needed to be provided to the tenant, were uploaded to an online portal which the tenant could log in and access/view/download a copy of the document(s).
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the Regulations”) set out the requirement for landlords to provide prescribed information and documents (including the HTRG).
The Regulations provide:
(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2).
(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.
(3) The information may be provided to the tenant—
(a) in hard copy; or
(b)where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.
The underlining is our own emphasis to show that the regulations require the tenant to be given a copy of the HTRG, either in hard copy or by email.
The Regulations also require the landlord to ‘provide’ the Energy Performance Certificate and the Gas Safety Certificate to the Tenant. In the Regulations, there is no suggestion that the EPC or GSC may be provided by email; although if there is an adequate service provision in the tenancy agreement they may be served by email.
At common law, to evidence service of a document, it must be proved that the document has come to the attention of the recipient. Certain statutory provisions can apply to the service of notices and once it is shown that the notice has been left at, affixed on, or sent by post to the relevant address, there is an irrebuttable presumption of delivery so that evidence the intended recipient has never seen it is irrelevant.
This rule of ‘Deemed Service’ exists to provide certainty to the sender of documents, that having taken a recognised step to bring a document to the attention of the recipient, the document will be treated as having been received by them.
There are recognised steps for service of documents contained in the CPR and these include first-class post, or email, as well as some other less frequently used methods.
Landlords and tenants can rely on the provisions of the CPR by incorporating these service provisions into their tenancy, or alternatively, they may incorporate their bespoke service clauses as they consider appropriate.
Where a tenancy contains a service clause, this clause will take precedence over other rules/methods for service. The tenancy agreement in our recent matter contained the following service clause;
5.3. The provisions for the service of notices are that if the landlord or the agent delivers by hand any Notices or documents which are necessary under the agreement or any Act of Parliament to the Premises by 4.30 pm or the last known address of the tenant if different; and reasonable evidence is kept of the delivery; the documents or notices will be deemed delivered on the next working day; or if any documents or notices are sent by registered, or recorded delivery post the documents will be deemed delivered upon proof of delivery being obtained; or if the documents or Notices are sent by ordinary first class post addressed to the tenant at the Premises or the last known address of the tenant if different; and reasonable evidence is kept of the delivery; the documents or Notices will be deemed delivered two working days later.
There is no mention in the service clause within the tenancy agreement, that service by email (or the online portal) is acceptable. This is not uncommon and the service clause above is found in many template-assured shorthold tenancies.
In the present case, when signing up for and using the online portal, the tenant agreed to a number of terms and conditions. The relevant clauses were as follows;
The site carries out several administrative functions resulting in important and legal documents being generated. By using this site, you consent to receiving these important documents either via email or via the site, using your supplied user identification code and password. In addition, you acknowledge that your consent and agreement may be obtained electronically, for example by ticking a box to state that you agree with something, and wish to proceed. If you disagree with this you should contact us to make alternative arrangements.
By agreeing to use the online portal you are agreeing to receive all documents/notices electronically to the email address used to register/access the online portal.
These clauses indicate that the tenant agrees to receive documents in the manner stated, but there are a few notable risks with this.
(1) These clauses are contained in documents outside the tenancy agreement and are not incorporated into it as a method of service. It is the tenancy agreement which the Court will look to when determining whether a document has been served. If the clause does not provide for the method used, the party serving will need to prove at common law that the document came to the attention of the intended recipient.
(2) At common law, being required to show that the document came to the tenant’s attention may prove difficult. Unless there is some way of knowing when/if the tenant has viewed the relevant document in the portal, there may well be difficulties in satisfying a Court that the document was brought to the attention. i.e. the documents might be uploaded to the portal but the tenant may not log in and view them.
(3) Service by email requires an email to be sent – in the instance whereby documents are uploaded to a portal, they are not sent to the email address provided (only a link to log in and view them). We have seen a marked shift in the judiciary over recent years and Judges are keen to ensure strict compliance with the requirements placed on landlords. This is particularly so where landlords wish to avail themselves of their right to recover possession under the so-called ‘no fault’ possession procedure contained in section 21 of the Housing Act 1988. The result is that by using modern and innovative methods to comply with requirements, landlords may find themselves unable to recover possession of their property using Section 21, or in some circumstances may be liable to pay compensation to their tenants.
There may be more than one solution, but if technology is being used, we consider the best approach is to have the documents sent by email. If this is not feasible using the portal systems available, the agreement should have a bespoke service clause which states documents uploaded to the portal are deemed served within a certain time after having been uploaded (with an email sent to the Tenant informing them that they are there).
We recommend that you seek advice on suggested wording for such a clause, but there may still remain a risk that the Court deems the step of uploading into a portal insufficient when determining if the document has been provided to the tenant, as required by the Regulations.
If you have any questions pertaining to the issues raised in this blog or would like to seek advice relating to your tenancy, please get in touch with us at Contact@legalforlettings.co.uk.
Last Updated: February 7, 2024
It is important to ensure you are compliant with all the prerequisites for a possession claim under Section 21. Below are examples from a number of cases in recent months where there have been issues regarding the sum of the deposit. The Tenant Fees Act 2019 (“TFA”) introduced a deposit cap equal to 5 weeks of rent for tenancies in England.
This landlord granted an AST, which commenced on 19/09/2019 following the inception of the TFA. The monthly rent was £875, and according to the tenancy agreement, a deposit of £1,010.00 was payable in connection with the tenancy. The maximum deposit permitted under the TFA in this instance is £1,009.61. A deposit of £1,009.61 was protected with an authorised scheme on 13/09/2019, with Prescribed Information (“PI”) being provided as part of the tenancy agreement. Prior to issuing possession proceedings, the managing agent confirmed that whilst the tenancy stated £1,010.00 was payable (and this sum was paid by the tenant), they only requested a deposit of £1,009.61 as per the sum protected within the scheme. It was confirmed that the excess sum of 39p was returned to the tenant.
The proceedings were issued accordingly with the tenant filing a defence to the claim, confirming that they paid £1,010 as a deposit but alleging that the 39p excess was not returned to them.
Upon seeking repeat instruction following the defence, we were instructed that the 39p had been allocated towards the tenant rent account and noted as a credit within the ledger. It was suggested that this sum would be repaid to the tenant at the end of the tenancy and that the reason it had not was because the tenant did not raise it.
Without an agreement for the excess sums to be applied to the rent account or funds being repaid directly to the tenant, this excess payment remained a sum paid as a deposit pursuant to the tenancy agreement; therefore, it was a prohibited payment as defined in the TFA.
The Section 21 notice was invalid, meaning the proceedings were fatally flawed; therefore, the claim was discontinued. The remedy available to the landlord was to return the deposit excess, serve updated Prescribed Information, then serve a new Section 21 notice and begin the process again.
This might seem draconian for the sake of 39p; however, the legislation is clear on these matters. The value of the deposit cap is a mathematical calculation and if the sum paid/held is greater than the maximum allowed, the excess will be deemed a prohibited payment. We are also aware that many online calculation tools round up the deposit sum to the nearest whole penny. Legal for Lettings considers that this will result in a breach of the TFA because the amount of excess is not relevant, it is the mere existence of an excess which will mean a prohibited payment is held.
We strongly suggest that the deposit calculations are completed manually, and in any event, are rounded down to the nearest penny (or perhaps down to the nearest pound). These calculations will ensure there can be no arguments of a prohibited payment being held – particularly given that proceedings may be derailed, causing significant delays or requiring you to start the process again, all for the sake of a few pence.
We continue to see thorough scrutiny of Section 21 applications by the court and duty solicitors and consider this an example of why you must ensure that you have satisfied all requirements, and that you are able to evidence the same.
If a prohibited payment is held, it is important to return the payment as soon as possible, ensuring that you have written evidence of this agreement.
At Legal for Lettings, our experts can help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property. If you want to see how we can help, get in touch at contact@legalforlettings.co.uk or by telephone on 0330 333 7183.
Last Updated: November 22, 2023
Recently, we discovered a Section 21 claim dismissed on a deposit technicality relating to a ‘material change’ in the tenancy.
Our view is that this claim should not have been dismissed. Unfortunately, given the forecasted costs and time required to appeal the decision, the client opted to address the technicality and re-serve notice rather than challenge the finding. Therefore, whilst we have no authoritative findings on the matter, we consider it helpful to ensure that full compliance is observed to ensure that further or future challenges are kept to a minimum.
The landlord let their property to a tenant under an assured shorthold tenancy, beginning on 02/08/2018. The defendant paid a deposit of £1,488.00 on 31/07/2018, which was protected with the TDS Custodial scheme on 07/08/2018. The prescribed information relating to the deposit was provided to the relevant person on 01/08/2018.
A rent of £1,075.00 was payable in advance on the 2nd of each month, in accordance with the agreement. However, as of 02/08/2021, the rent was increased to £1,150.00 by mutual agreement between the first defendant and the claimant.
Notice pursuant to Section 21 of the Housing Act 1988 was served to the tenant and proceedings were issued and listed for hearing. At the hearing, it was agreed that the deposit had been protected and that the prescribed information regarding the deposit had been provided to the tenant at the start of the tenancy.
However, the duty solicitor, acting for the tenant at the hearing, alleged that the Tenancy Deposit Scheme required the landlord to have re-protected the deposit when the rent increased. The duty solicitor alleged that according to the TDS website, any deposit with TDS should be re-protected when there has been a ‘material change’. A material change for these purposes was said to be defined to include there being a ‘change to the rent or deposit value’.
Upon being referred to this fact, the court found that the Section 21 notice was invalid because of this technicality.
Landlords and agents will be aware that in order to serve a valid Section 21 notice to end a tenancy where a deposit has been received, the initial requirements of the scheme must be complied with; therefore, the prescribed information must be provided within 30 days.
Section 213(3) of the Housing Act 2004 states that:
Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements* of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 30 days beginning with the date on which it is received.
Section 213(4) provides:
For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving* such a tenancy deposit.
*our emphasis.
Section 213(6) requires: the prescribed information to be given to the tenant and any relevant person within 30 days of receipt of the deposit.
Section 215 of the 2004 Act provides that no Section 21 notice may be given at a time when Section 213(3) or 213(6) has not been complied with.
According to the TDS terms and conditions, to protect a deposit in TDS Custodial, the landlord or agent must:
The terms and conditions confirm that registering the deposit and paying the money into TDS Custodial are both ‘initial requirements’ of the scheme for the purposes of section 213 of the Housing Act 2004.
With reference to the above requirements, we consider that by registering and paying the deposit to the TDS Custodial within 30 days, the landlord had complied with the initial requirements of the scheme for the purposes of Section 213 of the 2004 Act. Therefore, regardless of whether there is a ‘material change’ to the tenancy, our view is that the landlord is compliant with the legislative requirements for serving Section 21 notice.
It is true that the terms and conditions of the authorised deposit protection schemes do require re-protection of deposits in certain circumstances. For instance, if there is a churn of tenants, the deposit is deemed to have been repaid; therefore, it needs to be re-protected within 30 days. However, as demonstrated above, where there is an increase of rent, we do not consider there is a need for fresh compliance with Section 213.
As ever, it is important to ensure that you are compliant with all of your obligations as a landlord and we would strongly advise you familiarise yourself with all of the terms and conditions applicable to the deposit protection scheme that you use to ensure compliance.
By ensuring you comply with all of the terms, such as re-protection/re-registration, there can be no question of compliance and no challenge to the validity of a possession claim under Section 21 of the Housing Act 1988.
Here at Legal for Lettings, we have experts to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property. If you want to see how we can help, get in touch at contact@legalforlettings.co.uk.
Last Updated: November 21, 2023
It should not be news to landlords that Section 11 of the Landlord and Tenant Act 1985 (“LTA 1985”) sets out repairing obligations that apply to landlords of a tenancy granted for a term of less than seven years.
Section 11(1) inserts an implied covenant into such tenancies, which requires the landlord;
(a) To keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(b) To keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and
(c) To keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
Following the introduction of the Homes (Fitness for Human Habitation) Act 2018 (“HFHHA 2018”), legislative requirements which previously only applied to very low-value tenancies became applicable to any lease of less than seven years to which the Section 11 obligations apply. For all new tenancies, since 20 March 2019, landlords are required to ensure that their properties are fit for human habitation at the start of the tenancy and that they remain fit for the duration of the tenant’s occupation under the tenancy.
There is a list of factors to which the court will have regard when determining if a property is fit for human habitation and they include;
Prescribed Hazards include;
A “hazard” is defined as;
“any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).”
Section 11 obligations relate to repair, not improvement. As such, there needs to be an element of disrepair such as a broken gutter, causing water to run down the outside wall, which in turn causes damp and mould inside the property. In those circumstances, the landlord must repair the gutter (Section 11(1)(a)) and also address the mould/damp which is caused as a result. Similarly, if there is a breach in a Damp Proof Course that is causing rising damp, the landlord’s repairing obligations arise. But, if there is no Damp Proof Course, due to the age of the property, the landlord does not have to install one under the Section 11 obligations as this would be an improvement.
However, given the changes made by the HFHHA 2018, the requirements on landlords extend beyond those found in Section 11.
The definition of a hazard is any risk of harm and the cause of the hazard includes absence of maintenance or repair, or otherwise. Therefore, the cause of the hazard does not necessarily need to be the fault of the landlord.
Landlords can rely on an exemption from liability if the cause of unfitness is wholly or mainly attributable to the tenant’s breach of their contract, but this will require a determination by the Court at trial. Firstly, to ascertain whether there is a breach by the tenant, and secondly, whether that was wholly or mainly attributable to the unfitness for human habitation.
Historically, ‘tenants’ lifestyle’ was used as a defence to claims where mould or damp were present, but that is increasingly less successful and there has to be a balanced view. Drying clothes indoors is inevitable where there is nowhere outside to do so, or for example, in the winter. Cooking, bathing and breathing are essentials of living and all create moisture. If there are insufficient ventilation installations in the property to expel the moisture then the property may be unfit for human habitation and the landlord may need to take steps to address the issues.
As such, it cannot be said, that by cooking, bathing, drying clothes indoors or breathing, the tenant is responsible for the presence of damp and mould in the property. If there is a presence of damp and mould, and it is causing a health risk – about which there can be little doubt following the tragic case of Awaab Ishak, the property may not be reasonably suitable for human habitation.
It is important to remember that litigation can be extremely expensive and time-consuming; therefore, should be avoided where possible or be the last resort. The time-consuming journey of this type of litigation, and the expense of proving to the court that the behaviour of the tenant is wholly or mainly attributable to the cause of the mould and damp, often means that simply doing the necessary repairs is the most commercially sensible way to resolve matters.
The changes in legislation indicate a tightening of standards applied to the private rental sector. The long-awaited Renters Reform Bill was supposed to extend the Decent Homes Standard to the private rental sector, meaning that everyone in rental accommodation should have a home which is fit to live in.
If a tenant raises an issue regarding the condition of the property, which falls into one of the landlord’s obligations, the landlord should act promptly and take reasonable steps to address the issues.
As set out above, it is almost always inappropriate to say that the ‘tenants’ lifestyle’ is causing the issues. Our advice would be to work with tenants cooperatively to find out what issues they are experiencing, proactively investigate what may be causing them and then take appropriate actions to resolve them wherever possible.
Should litigation be necessary, it will be vital to have evidence of inspections, receipts and invoices for works, explanations of any delay, records of communications etc. These records should provide evidence of the state or condition of the property and the steps taken to resolve any matters raised.
Ultimately, it may be necessary to instruct an expert property surveyor to identify the defect, its cause and the damage inflicted. Only an expert can provide evidence to the court on such matters. Even if the expert confirms there is no breach by the landlord, unless it is proven that the cause is wholly or mainly attributable to the tenant, the landlord may still be required to remedy the defects. The legal costs incurred by that stage are likely to outweigh the costs of acting on the issues when raised.
In short, it is prudent to perform regular property inspections, keep comprehensive records, cooperate with tenants, and proactively manage and address issues when reported.
At Legal for Lettings, our experts are available to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property.
If you want to see how we can help, get in touch at contact@legalforlettings.co.uk.