No doubt everyone who reads this blog is getting sick of the whole sea change of regulations due to come into force on 1st October. It seems no time at all since March and the passing of the Deregulation Act 2015 when we all breathed a sigh of relief over deposits.
One part seems to be missed a little and may turn out to be one of the most important aspects for Landlords. That is Section 33, titled within the Act as “Preventing retaliatory evictions.” Whether we agree the concept exists or not this section will come into force on 1st October 2015.
So what does it involve and mean for landlords and agents?
In simple terms it is about ensuring let property is kept adequately repaired and maintained in compliance with section 11 of the Landlord and Tenant Act 1985. Nothing to worry about here you all shout, we are good responsible agents and landlords. However all is perhaps not as straight forward as you may think.
Whenever you receive a complaint in writing from a tenant regarding the condition of the property you must within 14 days give an “adequate” response in writing and in default a section 21 notice cannot be served. Whilst it refers to the complaint being in writing given there will inevitably be judicial consideration of these regulations we suggest that you ensure all complaints, no matter how minor, are clearly logged on your system and responded to. This means even when you have a telephone conversation with a tenant and resolve an issue in that conversation we would recommend that you confirm that conversation and what was agreed was your adequate response in writing or email so you have evidence of compliance. This may be overkill but better that than having a section 21 notice dismissed for lack of evidence of compliance on your part.
The next question is what is “adequate”. The Act provides limited explanation. It should provide an explanation as to what action the landlord is taking and the proposed timescales, clearly this will be subject to judicial interpretation. We think it means practically you need to show you are being pro-active in trying to resolve complaints and so if any doubt you must either go yourselves or send a competent person to inspect any reported problem on each and every occasion no matter how trivial they may appear. The response must set out the timescales in which you intend to undertake any remedial action. In effect it will be a report as to what was found, what you are going to do and when. Hence many firms are likely to develop a standard pro forma.
The section also provides that if the tenant is unhappy with your response he can complain to the local authority who may then serve a notice requiring works to be undertaken. If such notice is served then no valid section 21 notice may be served for 6 months from the date of that notice.
All the provisions provide that section 21 notices cannot be served after the actual complaint either by the tenant or service of the notice by the local authority. Arguably this does not effect earlier section 21 notices or situations where the tenant has complained to the local authority but they have not inspected either by the time of the service of the notice or the court proceedings. However practically we suggest that it is likely that where issues are raised this will inevitably either lead to accelerated claims being listed for hearings or adjournments being granted to ascertain if the local authority is taking action. Whilst there may be arguments to say that courts should not do this in our experience we think this will be District Judges response, at least until an upper court directs otherwise!
For private landlords there are limited safeguards and exceptions. These include if you can show the tenant has been the cause of the poor condition either from positively damaging the property or omission. Again the landlord will need to prove this. The other exception is if it can be genuinely shown the property is on the market for sale. Again we suspect very good evidence will be required by courts to prove this is the case and not just an attempt to get around the regulations.
It is vital therefore that those of you actively involved in property management look at your processes. Ensure it is 100% clear as how and to whom complaints of disrepair should be addressed and that your processes for dealing are clear. You may also want to remind landlords that just because a tenant complains is not a reason to serve a notice and in fact may no longer be possible. And finally as with, any of the other regulations sadly it will come down to judicial interpretation of the regulations and so for the time being there are many unanswered questions.