2020-02-17
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Assuring your assured shorthold tenancy is compliant?

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Posted by Mary Rouse on 11 June 2019

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

There are a number of steps you must take at the start of an assured shorthold tenancy if you want to be able to recover possession at the end of it:

  • Protect any deposit and serve the prescribed information
  • Give your new tenant a copy of the valid Gas Safety Certificate
  • Give your tenant a current Energy Performance Certificate (EPC)
  • Issue your tenant with the current ‘How to Rent’ Guide

Let’s consider these in more detail:

Tenancy deposit protection 

The requirement for landlords to protect deposits was introduced by the government to ensure that deposits could not be unfairly withheld by landlords.

As a landlord, if you take a deposit in connection with an AST, you must protect it by paying it into a government approved scheme. You will need to join one of the government approved schemes. Currently (for England and Wales) these are:

  • Deposit Protection Service;
  • My deposits (including deposits that were held by Capita); or
  • Tenancy Deposit Scheme.

You must put the deposit in the scheme and serve the ‘prescribed information’ within 30 days of receiving the deposit.

What is the prescribed information?

The government has set out the information that must be provided to your tenant:

  • the address of the rented property
  • the amount of the deposit paid
  • how the deposit is protected
  • the name and contact details of the tenancy deposit protection scheme and its dispute resolution service
  • your (or your letting agency’s) name and contact details
  • the name and contact details of any third party that’s paid the deposit
  • why they would keep some or all of the deposit
  • how to apply to get the deposit back
  • what the tenant should do if he cannot get hold of you at the end of the tenancy
  • what to do if there’s a dispute over the deposit

What happens at the end of the tenancy?

Your tenant must get back his full deposit if the terms of the tenancy agreement have been met.

If any terms have been breached, i.e. there damage to the property or your tenant has failed to pay rent, a deduction from the deposit may be possible.  A deduction can only be made if you both agree to this.  If you are in agreement, you must return the balance of the deposit within 10 days of reaching agreement.

What if we cannot agree?

If you cannot agree, each of the schemes has its own adjudication scheme which can be used free of charge.  You will need to say why you think you should be entitled to make a deduction and send in any evidence you have, i.e. ‘before and after’ photographs.  Your tenant can also say why they think a deduction is unfair. The independent adjudicator will decide who should receive what and their decision is final.  The disputed amount of the deposit is held in the scheme until resolution.

Energy performance and gas safety certificates 

Energy Performance Certificate (EPC)

As a residential landlord you must provide a valid EPC to any prospective or new tenant and it must be provided free of charge.

An EPC gives information about the energy efficiency of the property. It is issued by a surveyor who has inspected the property. The inspection must be carried out unless the building is exempt or the proposed tenancy offered falls into one of the exemptions. This would be rare.

If there is no existing EPC, the landlord must commission one. 

The certificate must be provided to the new tenant at the earliest opportunity and in any event at the earliest of the following:

  • When the prospective tenant first requests written information about the property;
  • When the tenant views the property.

An EPC must be provided to your tenant, even if this is after completion of the AST.

Gas Safety Certificate (GSC)

A current valid GSC provided by a Gas Safe registered engineer must be provided free of charge to any new tenant before they take up occupation.

What happens if I have not served one or both certificates?

If you have failed to serve one or both, you may have difficulty recovering possession of your property.  This is an area where we can provide expert advice and support to help you get your property back.

‘How to Rent – the checklist for renting in England’ guide

If your property is in England you must provide your tenant with the current version of the Government’s ‘How to Rent’ guide (‘the guide’) at the start of the tenancy. There is a separate guide for Welsh tenants but service of that guide is not compulsory.

The guide is designed to help tenants in the private rented sector to understand their rights and responsibilities.

It provides a checklist and some detailed information on each stage of the renting process, including:

  • what to look out for before renting;
  • living in a rented home;
  • what happens at the end of a tenancy? and
  • what to do if things go wrong.

What if I don’t serve the guide?

If you fail to serve the guide at the start of the tenancy, you may have difficulty recovering possession of your property.  We can advise you in such circumstances.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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