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Granting a New Residential Tenancy in the Private Sector (England) – Removing a smile from your client's face

Not so long ago, all that was required for a residential tenancy in the private sector where the rent was payable weekly was a rent book (frequently purchased from WHSmith) - s4 of the Landlord and Tenant Act 1985.  Termination was relatively straight forward where the tenancy was an AST. How times have changed.

Since 1 October 2015

The grant of a new residential tenancy in the private sector now requires:

  • The tenant to be given at the start of the tenancy the current version of the "How to rent – the checklist for renting in England" published by the Department for Communities and Local Government available to download at (www.gov.uk/government/publications/how-to-rent).
  • The terms of the tenancy agreement to comply with the fairness requirements as provided for by the Consumer Rights Act 2015.
  • The tenant to be given a copy of the energy performance certificate and current gas safety certificate for the property.
  • Smoke alarms to be fitted in all areas used as living accommodation.
  • Carbon monoxide alarms to be provided in all rooms containing a solid fuel burning combustion appliance.
  • Where appropriate, the necessary licence (Selective, Mandatory or Additional) under the Housing Act 2004 to be in place.
  • If there is to be a deposit, the service of the required prescribed information in accordance with the Tenancy Deposit Scheme and any subsequent protection of the same - see further Chapter 4 of the Housing Act 2004.

A section 21 Notice in respect of that new tenancy (which now has to be in a prescribed form (Form 6A - Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 - SI 2015 No. 1725) cannot be served during the first four months of the tenancy and any possession proceedings based on that notice must be begun within six months of the service of such a notice.

A section 21 Notice cannot be served in respect of that new tenancy if:

  • The landlord has failed to have previously given the tenant an energy performance certificate and an up to date gas safety certificate.
  • The tenant has not been given a copy of the "How to rent" booklet.
  • The tenant has made a written complaint to the landlord regarding the condition of the property and the landlord has failed to provide a response within fourteen days or has provided an inadequate response there to.
  • Within the period of six months prior to the service of that notice the local housing authority has served a remedial notice or lifted a stay on a suspended remedial notice.
  • Unless repaid in full by that time, any deposit has not been dealt with as required under the Tenancy Deposit Scheme including providing the required information.

A section 21 Notice in respect of that new tenancy will be deemed invalid if:

  • The tenant has proceeded to issue a complaint to the local housing authority about the landlord's failure to respond to his or her complaint; and
  • A remedial notice has been served on the landlord by the local housing authority

but will be deemed valid if:

  • The complaint is made after the service of a s21 Notice by the landlord.
  • The disrepair complained of was caused by the tenant.
  • The claim is being made by a mortgagee exercising a power of sale under a mortgage granted prior to the beginning of the tenancy.
  • At the time it was served the property was genuinely being marketed for sale

From 1 February 2016

  • All private landlords granting a term of less than seven years will have to check that at the time of the letting all new tenants and all other adults who will be living at the property as their only or main home have the right to be in the UK and this right will not lapse during the course of the tenancy. The landlord will also need to keep records of the checks made together with copies of all identification documents.  This requirement will not however apply to a renewed tenancy entered into after 1 February 2016 provided the parties are the same and there has been no break in the tenant's right to occupy the premises – see further the Immigration Act 2014.

Good luck!