Tag Archives: tenancy

Are you having abandonment issues?

Lucy Regan, London Representative for the NLA advises landlords on the issue of tenant abandonment.

Abandonment isn’t something that happens often in the private rented sector but when it does it can be distressing and confusing. But how do you know if your proREGAN Lperty has been abandoned and what are the steps you need to take?

Things you need to consider

Has the property been abandoned?

First of all a landlord must decide if the property has been abandoned. If a tenant has given notice or handed back the keys this is then termed ‘surrender of tenancy’. Secondly a landlord must establish the reason: there may be a valid reason as to why a property is left unattended, for instance a hospital stay, an extended holiday or the tenant has gone to prison.

Insurance

Your insurance may not be valid if the property has been left unattended for more that the stipulated period. This could prove costly as empty properties are susceptible to squatters and vandals.

How to check that property has been abandoned

  • Contact – A landlord should first attempt to contact the tenant. If they do not respond to calls, voicemails, text messages or emails, it could be the first bit of evidence that the property has been abandoned?
  • Is the tenant still making rent payments? – When did they stop? Is that normal or have they been late with payments before?
  • Are the tenant’s possessions still at the property? If they have been removed, it could be another tick in the box of abandonment. Checking for possessions can be difficult. In some cases a landlord may be able to see through a window, but if this is not possible, they must then seek permission from the tenant to access the property. But with the suspicion of abandonment this may not be possible. However if a landlord thinks the property is in an unsafe state they may enter, but they must be cautious and make sure there is a clear reason for entering. It would also be a good idea to have a witness come along.
  • Is the tenant claiming housing benefits? If so, then a landlord can contact the Housing Department. They may even be in contact with the tenant and could shed some light on the situation.

Where do you stand legally?
A landlord needs to be aware that the tenant is legally entitled to return and take up residence again, and that the landlord is responsible for the tenant’s possessions.

If a landlord takes over the property and re-lets it, there could be serious trouble as it is a civil offence relating to the breach of the existing tenancy contract. It is also a criminal offence to prevent the continuation of the tenancy.
There have been cases where landlords have been fined up to £20,000 for re-letting their properties when then tenant is clearly not coming back.

The safest way to deal with abandonment is to get a court possession order before taking over the property.

What to do next

If a landlord has established significant evidence that the property has potentially been abandoned they should follow these steps:

  • Remember to ensure that all communications and actions are documented.
  • Make sure that there is a witness available and willing to give a statement at any time when at or dealing with the property and tenant. A local authority’s Tenant Relations Officer can help with this.
  • Serve an Abandonment Notice. This note must be placed on the tenant’s door. However, be aware that this may attract squatters, so do it as discreetly as possible. It is advisable to take a picture of this with a newspaper to show the date. To be safe, post a copy through the door. After five days, the locks may then be changed (unless already done so to secure the property or see to any present dangers).
  • Any possessions remaining in the property must be stored for a reasonable amount of time.
  • Under no circumstance must you deprive the tenant of their rights to access.
  • Inform the local authority rent officer of your actions in writing.
  • Seek expert advice: the NLA advice line is on hand for NLA members.
  • Always obtain a court possession order before taking over the property or re-letting if there is any doubt.

To avoid getting into this kind of situation it is best practice to get a thorough reference on the tenant at the start of the tenancy. Check for rent payments, and visit the property regularly. If you are on good terms with a neighbour, you could ask them to keep an eye on any suspicious movements, or provide a weekly cleaning service.

Finally, it is a good idea to build up a relationship with the tenant and make them aware that if they do go away for an extended period of time that they can let you know.

New guidance to promote successful tenancies

Make sure you know your rights as a renter

Make sure you know your rights as a renter

New guidance has been produced to help private renters in England who are looking for a house or flat to rent.

The guidance has been produced by the Department for Communities and Local Government (DCLG) and provides a checklist of the most important and common aspects to help protect renters from problems at every stage of looking for, and moving in to, private rented property.

The guidance is for renters who are entering in to an assured shorthold tenancy (AST) agreement – the most commonly used tenancy agreement in the private sector – but doesn’t cover lodgers or people with licences , nor tenants where the property is not their main or only home.

What’s in it?

It provides a host of information that should enable a better understanding about the rights of the tenant, and their responsibilities so that a positive relationship with their landlord can be maintained. It contains lots of detailed information about what to consider:

  • before searching for a property –  whether through  letting agent or directly from a landlord;
  • once you’ve found a place –information about the important documentation tenants should receive from their landlord or agent;
  • during the tenancy –  including the rights and what’s expected of tenants, and how to deal with problems or issues;
  • When the tenancy is coming to an end –how to renew or extend the tenancy and how the property should be left upon tenancy expiry to ensure no issues arise.

What if problems arise?

The guidance also contains important information about tenant’s legal rights and offers further sources of information and support for renters who experience problems during the tenancy, such as:

  • financial problems
  • Concerns over the safety of the property
  • Fear of or actual harassment by the landlord/ illegal eviction.

Download the full guide now

You can download the guidance from he DCLG’s website here.

Most of it will equally apply if you are in a shared property but in certain cases your rights and responsibilities will vary.

Accreditation forges ahead

Renee Young, Landlord Development and Accreditation Officer at the NLA points to the growing trend of landlord accreditation.

lady_readingThere have been increasing calls for regulation of the private rented sector, and the landlords who operate within it, in order to improve standards of late.

However, this narrow-minded approach to better the sector is overshadowing another significant option which works in a much more productive way with local landlords, and which many local councils already reap the benefits of.

Penalising the good makes no sense

In most cases local landlord licensing schemes or even national registers – as already exist in Scotland and Northern Ireland – amounts to little more than names on a list and very little evidence supporting their necessity exists. The vast majority of landlords are responsible and provide well managed properties so in our mind it has always seemed totally unfair to penalise the good, in hope of catching the negative minority of who are failing their tenants.

A more productive solution – landlord accreditation and education

The NLA believes that landlord accreditation and education is a better way to give landlords the opportunity to stay on top of the ever changing regulations and, importantly, to enable them to better maintain their properties.

Our aim is to have all landlords work to this agreed standard. NLA Accreditation is purely based on landlord development and it offers greater consistency for all landlords, tenants and councils to recognise. Importantly it is an earmark of good practice which tenants can rely on.

Recent research from the NLA shows that about 70% of tenants said they’d be more likely to accept a property from a landlord if they knew they were committed to completing an annual programme of accreditation or training.

Taking off

Encouragingly, it’s not just tenants who see the benefits – a number of local councils seem to be getting the message, too. Many want to improve standards but ultimately don’t want to alienate the majority of good landlords in the area by imposing more red tape or costly measures.

Over 40 councils have already taken the initiative to offer the NLA accreditation scheme in its areas and the London Rental Standard, launched by Mayor Boris Johnson recently, is also closely based on the NLA’s accreditation framework. South Staffordshire and Crawley Council agreed to work with the NLA and have picked our accreditation scheme over other existing schemes in their regions. Cumbria City Council recently launched accreditation across the region – known as Cumbria Landlords Accreditation Scheme (CLAS).

Hastings and Rother, Breckland and Norfolk and Dorset Council are just some of the other authorities that offer accreditation based on the NLA’s model, too. These schemes have been in place for some years. Bournemouth who took the lead with Poole, Christchurch, East Dorset and Purbeck Council all signed up to provide this service.

Join the growing number of accredited landlords

For more information about the local accreditation schemes contact your local council. Here are some examples of what some of the aforementioned councils offer:

London Rental Standard

Bournemouth

South Staffordshire

Cumbria

If you’re yet to become accredited then visit the NLA’s website for more information about how it will benefit you. There are a number of reasons to become accredited (including potential discounts on other existing local licensing fees and grants for property improvement works) and, as well as standard chalk and talk style courses you can become accredited online, meaning you take it all at your own pace.

The future

Accreditation is becoming increasingly important and is increasingly being adopted by councils as a way of ensuring that the goods and services offered by landlords are safe and managed well.

We hope that this is the start of a wider rollout of our accreditation scheme, so that no matter where you are, tenants will know what standards landlords are held to.  If we expect local or central government to recognise and absorb the truth – that the rogues are in a minority and that landlords are of real value to the economy – then a commitment to operating professionally can only strengthen the argument. And if the silent majority of good landlords are prepared to demonstrate that they know how to operate as professionals, then surely more and more councils will see this as a positive step towards guaranteeing standards of property management and follow suit.

Take some of the guesswork out of TDP – and put it into identifying the politicians

Which Twentieth Century politicians were responsible for these particulalry apt quotes?

Faceless?
Which Twentieth Century politicians were responsible for these particularly apt quotes?

I know you don’t visit the NLA blog to read about politics, but the events of this week have repeatedly made me consider the contemporary credibility of two fairly well known quotes by two different but nevertheless well-known  twentieth century leaders. Neither of whom are regularly quoted in respect of the private-rented sector – but perhaps should be.

Those who frequent a variety of the blogs and forums discussing the PRS and have observed the speculation concerning the recent ‘Superstrike’ judgment will probably recognise why the first of these quotes seemed pertinent:

 

“I read a number of press reports and find comfort in the fact that they are nearly always conflicting”

Consequently, the NLA has spent a great deal of the last few weeks working with a number of equally committed representative bodies. We have opted to do this in order to reach a consensus on interpretation of this appeal judgment and it’s likely implications in order to avoid the kind of  unhelpful confusion which could otherwise occur.

I am glad to say that a briefing agreed by the NLA, UKALA, BPF, NALS, RLA, ARLA and RICS can now be downloaded here: DOWNLOAD

It is not every day that all of these organisations agrees to co-operate in this way, but it is testament to the desire to provide good quality, useful and consistent information to those living and working in the sector that we have all managed to come together.

Of course, as useful as information is, this is not the end of the need for co-operation on this issue. Having met jointly with the Department for Communities and Local Government, it is clear that we need to present a strong unified case for action in order to convince the Government that it needs to amend the legislation which has created this uncertainty.

To this end, the organisations above have also agreed to jointly survey their members to find out how many landlords and agents are likely to be effected – and to what extent. Hence my second memorable quote of the day:

“There is no limit to the amount of good you can do if you don’t care who gets the credit”

Please take a moment to help us do some good by answering four quick questions about your tenancies and deposit arrangements: CLICK HERE

Finally, for those of you who are interested in finding out which two famous former world leaders were responsible for the quotes above – answers on a postcard (or better yet in the comments field below).

How do you separate a Scottish landlord from his deposits?…….Ask Alex

David Kendall, NLA National Representative for Scotland, airs his views on the creation of Tenancy Deposit Protection in Scotland.

Good old Alex Salmond has done it again. He would hate to admit it but he just loves to copy the English! ‘If England has a tenancy deposit scheme, then so must Scotland’  he said – well not in exactly those words but you get the gist.

At the end of January this year, the draft legislation for a Tenancy Deposit Protection (TDP) Scheme was laid before the Scottish Parliament. With an election looming, the SNP rushed to make sure it was approved before they lost power. Except as we all now know, the predictions were not quite right and the SNP did what the ‘anoraks’ said was impossible and were returned with a majority.

So now landlords in Scotland are likely to be faced with a TDP scheme which will become operational sometime in 2012. However, of course Alex needed to make it a little different from England and there are some differences – which are bound to send the more unscrupulous letting agents running.

The new scheme will only be custodial. Landlords in Scotland are clearly not trustworthy enough to insure their deposits.

But it gets worse!

The scheme is also going to apply to EXISTING tenancies. Therefore, the millions of pounds which agents and landlords have spent on lavish cars, holidays, sorry I mean, put in designated accounts over the last few years, will  need to go into the scheme within a maximum of nine months of it going live.

Okay Mr Salmond, we know there will be no charge to landlords or tenants; we know the arbitration service is also free of charge; but surely you should have taken some responsibility. Who is going to publicise the scheme? Not the Scottish Government. No, the publicity must be provided by the scheme providers and reinforced by their desire to grow their market share.

Of course ignorance is no excuse for non-compliance, but relying on marketing alone to communicate the importance of protecting all new and existing deposits is bound to leave some landlords out of the loop. Which will have serious consequences.

If a landlord does not protect the deposit within 30 days of receipt the tenant can take him to court and will be awarded up to three times the value of the deposit. Alternatively, the tenant could wait until he has moved out of the property and then claim against the landlord within 30 days of leaving the property.

What this means is inventories are really going to need to be up to scratch. Detail everything in the property; the makes of appliances, model numbers, condition, everything. Make sure you take loads of photos. Most importantly, make sure the tenant signs everything when he moves in and remember all paperwork must have dates; do not preprint or write it in yourself.

In England and Wales almost all disputes which end in the tenants’ favour do so thanks to a lack of an inventory or the landlord failing to provide sufficient evidence to justify deposit deductions. So when it comes into force don’t try to ignore TDP, it won’t go away, and it is up to every landlord to make sure he protects himself from unnecessary litigation and cost.

For more information visit: http://www.mydepositsscotland.co.uk/home.aspx

Don’t get caught out – make sure your tenancies are legal

Mary Latham, NLA Regional Representative for the West Midlands, provides some top tips for ensuring your Assured Shorthold Tenancy Agreement (AST) does not fall foul of the law.

While there have been major changes to landlord and tenant law over the last 20 years, the legal focus is still on protecting the rights of the tenants rather than safeguarding the landlords business interests.

Therefore, it is up to me to protect myself and my business.

Tedious as it can seem, my best protection is a thorough paper trail and the most important document is the tenancy agreement; usually an Assured Shorthold Tenancy (AST). There is no legal requirement to use written AST but any landlord who lets without one is taking a huge risk.

ASTs should be written in plain, intelligible English and should clearly state all the important details. Most off the shelf AST’s are fairly straightforward when it comes to the basics. However, I find the ‘small print’ regularly causes problems, which can be significant should problems arise down the line.

If a landlord takes a tenant to Court based on a clause in the AST, the Court will look at whether that clause is ‘fair’. If the Court decides the clause is ‘unfair’ they will remove the clause and the landlord will not be able to rely on it.

For example landlords frequently include a term like: “The tenant will not keep any pets or animals”.

Although this sounds perfectly acceptable to many, as it represents a complete ban on keeping pets, it will be classed as unfair and the landlord will be unable to rely on it in Court.

This is easily remedied though, by adding the caveat:  “without the express prior written permission of the landlord which will not be unreasonably withheld”.  This demonstrates that the landlord is willing to consider their tenants request and should be deemed fair.

In my 38 years as a landlord I have seen many clauses in tenancy agreements that breach consumer protection legislation.

Here are three common unenforceable  clauses I have seen over the years which are almost certain to see a landlord’s case thrown out of court:

1. “Allow the landlord or his/her agent to enter the property with prospective tenants or to inspect the property, during reasonable hours, 24 hours notice will be given where possible”.

The words “where possible” cause problems here as tenants have a right to the quiet enjoyment of the property. A minimum of 24 hours written notice must be given

A landlord cannot enforce any term which requires a tenant to give the landlord access to the property. A landlord may only enter with the agreement of the tenant, or failing that a court order.

2. “At the end of the tenancy, following the return of keys to the landlord, if it is necessary for the landlord to deduct an amount from the deposit for the cost to make good any damage caused to the premises or the furniture the Landlord must inform the tenant in writing within one month of receiving keys and proof of payment of bills. The deposit will only be returned once all outstanding bills have been paid and proof of payment correspond with the final readings”.

This clause has two problems. Firstly, it breaches the Tenancy Deposit Protection rules. The undisputed amount of the deposit has to be returned within 10 working days – together with quotes and receipts to justify any amount to be withheld.

Secondly, if the tenant is the bill payer they have a separate contract with the utility provider meaning that the landlord is not responsible. Therefore you cannot require proof of payment before returning the deposit.

3. “In the event of the rent or any part of it being unpaid for more than 14 days after it has become due whether legally demanded or not if there shall be a breach of any of the obligations on the part of the tenant … the landlord may re-enter the property or any part of it in the name of the whole and immediately the tenancy shall end without prejudice to any other rights or remedies of the landlord”.

This one is straightforward – a landlord cannot repossess a property for any reason without a court order, this is misleading and cannot be relied on in court.

Do not risk writing your own agreement or using one you found on internet. Use a tenancy agreement that has been checked by legal experts to ensure that you do not fall foul of these regulations.

My advice would be to save yourself some time and trouble by using the free NLA AST on our website. Otherwise it could end up costing you hundreds if not thousands of pounds.

If you feel that you need to add clauses to this AST members can call the NLA Advice Line to make certain that your clause is legally enforceable.

It’s never too late….or is it?

You haven’t got to be particularly well-connected to realise that not all landlords are supporters of tenancy deposit protection (TDP). For many it remains as contentious today as when introduced in April 2007 – and recent developments are unlikely to help change those opinions.

As committed followers of events in the private-rented sector will be aware there have been a number of fairly high profile legal cases in recent months concerning TDP arrangements.

So, shortly before the country fell silent for the annual Armistices Day memorial, the Court of Appeal in London made sure it was heard in relation to the latest of these, the conjoined appeal of Universal Estates v Tiensia and Honeysuckle Properties v Fletcher .

Both cases involved the protection of deposit monies outside of the 14 days provided in the TDP scheme’s rules – but subsequently before the court hearing.

The court ruled, that in line with the earlier case of Draycott v Hannells Lettings, penalties prescribed in the Housing Act in relation to a failure to protect deposits cannot be invoked following late protection according to an individual scheme’s rules.

The result of this judgement is confirmation that landlords should not be ordered to pay three times the deposit amount as penalty for late protection – provided that protection takes place prior to the court hearing. This will come as welcome news to those landlords who have in error failed to protect their deposits immediately.

No need to protect deposits anymore then?

Wrong! The NLA cautions landlords that this decision is not a reason not to protect their tenants’ deposits – or to wait until they are threatened with court proceedings before doing so. TDP is still a legal requirement in relation to most ASTs and failure to comply with the scheme rules of their chosen protection company – which may still require protection within 14 days – could result in administrative penalties courtesy of that scheme.

Further more, Justice Thorpe advised tenants who may need to rely on the Court to enforce the legislation, that landlords should be expected to pay their legal costs.

Landlords should also remember that this case only looked at one aspect of the legislation and that there are numerous parts of the TDP rules which were not touched by this decision – including what happens if proceedings are brought regarding a tenancy which has already ended.

What now?

It is possible that the Government will amend the legislation at the root of these cases to clarify exactly what requirements are ‘in the spirit of the law’ but given the current agenda in Parliament this is perhaps unlikely to happen soon.

In the mean time landlords are advised to continue to register any deposits as soon as practically possible with one of the three Government backed schemes and to check the terms and conditions of their chosen scheme for any requirements which could lead to dispute in the future.