Safe service of Gas Safety Certificates

Last Updated: September 4, 2024

Evidencing compliance with prerequisites for a claim under Section 21 is often challenged. Make sure you can prove service.

Section 21 claims, or “No Fault Evictions” as they are often referred to as, are a hot topic in the political world right now, but there is even more scrutiny of these claims at Court, whether it is the Judge, Defendant, or a Duty Advisor taking issue.

Whilst there is talk of Section 21 being abolished, for now, it is still an avenue available to Landlords to recover their properties, albeit the process for doing so has become incredibly complex to comply with. We believe that preparation is better than the cure and getting advice before serving your notice, or starting your possession proceedings is important to avoid lengthy and even more complex litigation.
At Legal for Lettings we deal with hundreds of cases involving Section 21 of the Housing Act 1988 (“S.21”) and have a team of experts that specialise in helping Landlord successfully recovering possession of their property.

One of the requirements which must be proven when relying on a notice under S.21, is that the Tenant has been provided with a valid Gas Safety Certificate (“GSC”) for the Property.

We have seen a number of cases recently where the Tenant disputes that they were served with the relevant GSC and upon seeking instructions on the point from our clients, we are informed that the GSC was left at the Property by the gas engineer which performed the check.

It is not uncommon for this to happen. Hard copies of the GSCs are usually completed in triplicate, with a copy being left for the Tenant, a copy being given to the Landlord or their Agent, and a copy being retained by the engineer.

If this is the case, it is the gas engineer which would be required to file a statement or certificate of service, to evidence that the document was left with/ provided to the Tenant. Often this will be possible.
However, given the increased prevalence of electronic documentation it is now common for GSCs to be produced electronically. Where this happens, it seems less likely that the Tenant will have (or could have) been given a physical copy of the GSC by the engineer on the day of completion. It might be possible that the engineer sought the email address of the Tenant and sent them an electronic copy, but it is also likely that they did not and would not – perhaps due to not appreciating the significance of the GSC, or on the understanding that it is the Landlord’s obligation to provide the GSC to the Tenant, not the engineer’s.

In any event, it is important that the GSC is provided to the Tenant, and it is crucial that a Landlord is able to prove this has been done.

In more than one instance, it has transpired that the engineer in fact did not leave a copy of the GSC with the Tenant when they completed the check, or that they ‘think’ they did but are unable or unwilling to provide a statement to that effect.

It follows that it is vital, that the Landlord ensures a copy of the GSC has been given to the Tenant. In order to remove any doubt, we recommend that Landlords, or their Managing Agent’s provide a copy of the GSC to the Tenant themselves, retaining proof of such and ensuring that this is done in accordance with any service clauses within the tenancy agreement.

Proceedings for possession can fail, and Section 21 Notices be deemed invalid, due to a misplaced reliance that the GSC had been left by the engineer, and this can be avoided by ensuring that the requirement is met directly by the Landlord or their Agent once the GSC is provided to them by the engineer.

Here at Legal for Lettings, we have experts on hand 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.

Deposit cap dilemma

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.

Deposit Protection – the terms and conditions

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 background of the claim

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.

The legal requirements

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:

  1. Register the deposit with TDS Custodial; and
  2. Pay the money into TDS Custodial (by cheque, BACS, internet banking or debit card).

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.

Our view

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.

Stay compliant

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.

Landlord obligations – damp and mould

Last Updated: November 21, 2023

What must landlords do to be compliant with their repairing obligations relating to damp and mould?

Landlord Obligations

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;

  • Freedom from damp;
  • Ventilation; and
  • Any “Prescribed Hazard”.

Prescribed Hazards include;

  • Damp and mould growth; and
  • Excess cold.

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).”

How do these obligations apply to issues of damp or mould?

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.

What should landlords do?

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.

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