Discrimination is illegal – and landlords and letting agents are subject to this, as are many others providing services.

But what is discrimination?

As I discussed in this post , there are what are known as ‘protected characteristics’ which are as follows:

• age
• being or becoming a transsexual person
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race including colour, nationality, ethnic or national origin
• religion, belief or lack of religion/belief
• sex
• sexual orientation

It is unlawful to discriminate against anyone applying to rent a property on the basis of any of these.

However, since I wrote that post in 2017, the law has moved on, and we now also have to take into account the rules about indirect discrimination.

Indirect discrimination

This is where you are discriminating on the basis of something which is not in itself a protected characteristic, but the discrimination has a worse effect on people with certain protected characteristics.

There are now two important types of indirect discrimination which affect renters:

1 Discrimination against applicants on benefit

By ‘benefit’, I mean all types of benefits, including Universal Credit).  This has been found illegal as it disproportionately affects certain types of people with protected characteristics such as

• Women (55% of adults who receive Universal Credit are women)
• Disabled people, and
• Black and Bangladeshi households (Black households are almost three times more likely than White households to receive Universal Credit).

The case of Tyler v. Carr was about a disabled man who successfully claimed compensation on the basis that he was being discriminated against indirectly.  You can read about this here and (at the end of the post) watch a webinar where one of the barristers discusses the case with me.

Mind you, landlords do not HAVE to grant a tenancy to applicants on benefit.  If the applicant clearly can’t afford the rent, the landlord is justified in refusing to let to them.

However, the landlord or letting agent must treat them the same way as everyone else and not refuse to consider their application simply because they are on benefit.

Many benefit tenants are wonderful tenants who pay promptly and look after the property well.  Remember that they may have savings or family willing to help them with the rent.  So you need to give them the opportunity to explain this.

2 Discrimination against families with children

Blanket bans against families have also now been found to be indirect discrimination and against the equality legislation.

This is because women are more likely to have dependent children living with them than men. Which means that refusing applications for suitably sized homes from those with children will disproportionately affect women – who have the protected characteristic of sex.

This has now been upheld by the Property Ombudsman, and although I am not aware of any court cases yet, I am sure there will be.

I suspect that most Judges will rule in favour of applicants where a landlord or agent has refused to consider them as tenants, simply because they have children when the property appears to be suitable for them.

So what should landlords and letting agents do?

Never include phrases such as ‘no DSS’, ‘professionals only’ or ‘no kids’ in your adverts.  If applicants are on benefit or have children, you need to consider them on their merits and not dismiss them out of hand.

Provided you have a reasonable reason for renting to someone else, you should be all right.  However, blanket bans are just asking for applicants to sue you for compensation.

Reasonable reasons for refusing to accept applicants would be:

• That their income is not sufficient to pay the property rent
• That the property is too small for the family size, or even
• That there were many applicants for the property (assuming there were), and you can only choose one of them

Just so long as your reason is not ‘I never allow children in my properties’ (landlord) or ‘our instructions from the landlord are that children are not allowed’ (agent).  Always give all applicants an opportunity to prove their suitability.

There is a helpful page on the Shelter website here with more information for landlords and agents.

What can you do if you are a tenant?

Times are tough for tenants just now, what with the shortage of available rented property generally and the rent hikes, due to landlords having to cover their increased mortgage payments following recent interest rate rises.

If you come across agents who are refusing to consider your application, then (assuming you can afford the property and it is suitable for your family) you can complain to their Property Redress Scheme about it.

Shelter have a useful page here with guidance and a helpful template for a letter or email you can send to agents who have refused to consider you because you have children.

And finally

The real problem behind all these issues is the lack of suitable homes available to rent.

So far as low-income families are concerned, this is likely to continue until (as I discussed here) we have a government which removes the ‘right to buy’ and encourages Local Authorities to embark on a big social house-building program.

But that is clearly not the Conservative government we have at the time of writing this post!

I am reading in the landlord press increasingly despairing cries from tenants’ organisations as the prospect of the Renters Reform Bill becoming law in this Parliamentary session slips away.

I can understand their despair as more and more landlords are deciding to evict their tenants and sell up.

However, passing the Renters Reform Bill is not going to improve the situation long term.

The Renters Reform Bill is the ‘nail in the coffin’ for many landlords who have seen the sector become increasingly more onerous for them with more regulation, stricter penalties and a lower income due to tax changes.

If the Renters Reform Bill were to come into force tomorrow, this might protect the tenants with existing tenancies from being evicted via the no-fault method.

However, it will discourage new landlords from entering the Private Rented Sector. And many current landlords, once their tenants decide to leave, will heave a huge sigh of relief and sell up.

So where are those who cannot afford to buy their own property going to live?

Admittedly, the buildings which are currently rental properties will still exist, but they will no longer be available to low-income families. Surely the government should be encouraging people to invest in rented property, not driving them away?

The Truth about Section 21

Most decent landlords will only use Section 21 to evict their tenants if

• The tenants are failing to pay their rent, or
• Are causing problems with anti-social behaviour, or
• Need to be evicted because they want to be re-housed by the Council – who have told them to stay in the property until the landlord evicts them.

When I did eviction work, probably about a third to a half of the evictions were effectively the landlord and tenant working together to force the council to rehouse the tenants.

The bad landlords

Admittedly, some landlords whose properties are in a shocking condition evict tenants if they dare to complain. These are the tenants which tenant organisations see most often, so naturally, they loom large in their view of the Private Rented Sector.

However, these landlords are not the norm. The reason they exist is because, with a few honourable exceptions, Councils fail to enforce the laws which exist to protect tenants.

With more and more councils going bust, this is not going to improve any time soon. To enforce the law, councils need to have well-trained staff – which many Councils simply cannot afford.

Indeed, during austerity, whole enforcement teams at Local Authorities were made redundant, leaving them with no or very few staff who understood the law and how to enforce it.

If the bad landlords were driven out, then there would be less of a problem. However, at the moment, it is the good landlords who are being driven out – leaving tenants to the mercy of the bad landlords, who never take any notice of the law and know that they can do this with impunity as Councils do not have the staff to do anything about it.

What is the solution?

1. A massive housebuilding push

Ideally, for social housing. If Local Authorities were able to house more low-income families in good energy efficient homes – what a difference that would make!

2 Stopping the ‘right to buy’

One of the reasons why Councils cannot rehouse desperate tenants is because they have been forced to sell off most of their housing stock under the right to buy.

Although it is nice that some people are able to buy their homes, I don’t see this as a justification for some people (already lucky as they have council housing) to be able to buy property built with public (i.e. our) money at an undervalue.

It is quick to sell a house but takes a long time to build one – and frankly, why would Councils go to all the bother of doing this if they are just going to be sold off again, leaving them with the same problems?

Then 40% of properties sold off under the right to buy end up in the hands of private landlords – who then charge a market rent rather than the lower rent that would have been charged by a social landlord. If their tenants are on benefit this means that all of us, through our taxes, are paying more for this.

Scotland and Wales have got rid of the right to buy – we should do this in England too. The only reason the government wants it to remain is that they want more grateful homeowners who will vote for them.

3 More power and funds for Councils for enforcement

Although really, it is funds they need as we already have laws they can use to crack down on the bad landlords.

Conclusion

If there were more rental homes available to low-income families, then it would matter less if they got evicted as they could easily find somewhere else to live. Ideally,  in social housing where they would have more security.

The bad landlords would also struggle as no one would rent their properties if there were better ones available elsewhere.

And if Councils were able to crack down on the bad landlords, there would be fewer of them anyway. In fact, criminals looking for easy prey would probably leave the housing sector – the reason we have them with us now is because they can operate unchecked due to the lack of enforcement against them.

So, section 21 would be far less of a problem.

Having section 21 does actually benefit some tenants as it is the best and quickest way for landlords to evict anti-social tenants – something which helps other tenants nearby and neighbours.

My suggestions above would be a far better way of dealing with housing than making life so difficult for landlords that they sell up and invest their money elsewhere, leaving low-income families with nowhere to live.

Welcome, and in our Newsround we cover the headlines that have hit the housing news this week.

£30k of grants available for older & disabled tenants

A new £50m fund has been released by The Department for Levelling Up, Housing & Communities to make adaptions for older and disabled tenants in England to ensure that they can carry on living independently.

Landlords will be able to apply for funding if they have a tenant living in their property that requires adaptation. The Older Person’s Taskforce say that there are 12.4m people in Britain aged over 65 and this is set to rise to 20.4m by by 2041.

Propertymark called on the government to improve access and promote the Disabled Facilities Grant to private landlords to try to get more private rented property accessible for disabled and older tenants.

A good incentive and use of funding.

Council housing at the heart of a Labour government

Angela Rayner, the new shadow Levelling Up, Housing and Communities Secretary has vowed to put council housing back into her reform agenda, which she says will help reduce the demand in the private rental sector.

She herself puts where she is now down to having been given a council house when she was a single mum which meant having that security enabled her to go out and work and better her skills. This kind of levelling up transformed her life and prospects because it was done right.  She says

Labour has a comprehensive plan to create good jobs across the entire country and raise living standards for all through our New Deal for Working People.

Alongside decent work, Labour has a plan to fix the housing crisis by building more homes, homes people can afford to live in with priority given to local people – and yes, that means more council houses.

She goes on to say that a labour government will provide this alongside creating a stronger sustainable economy.

Maybe this is the change we need.

Council allocates funds to buy from landlords

Newham Council has put aside an initial £20m into a preventative scheme that will buy homes from landlords that are evicting tenants thus enabling them to stay put and prevent more homelessness.

It has earmarked 44 properties at £450,000 each which includes refurbishing them. This is seen as a way out of the property crisis.

Jonathan Rolande from the National Association of Property Buyers says

It is brilliant to see councils brave enough to take a longer-term approach to the housing crisis and doing so may well prevent many families from the misery of homelessness.

Bringing more homes back under council control and building them wherever possible is the only way out of the property crisis for millions of people. It would after all be an investment in the future, it would suppress rents for everyone and reduce the benefits bill for those that need it.

A great initiative from Newham Council.

Government hits landlord profits

A new research has showed that the average property portfolio size has fallen by 5.6%, from 9.1 properties to 8.6 in the first quarter of 2022 and 2023.

The report from Benham and Reeves claim this is due to unfavourable government policies towards landlords.

Marc von Grundherr says

It’s getting harder to be profitable as a landlord, and that impact is starting to show.

Losing income tax relief had a big effect, while many investors are understandably worried about the upcoming changes to Capital Gains Tax, minimum EPC rules, and the elimination of Section 21 evictions.

He further states that unless the government reverse some of these changes rental stock will continue to diminish and drive landlords away.

Snippets

UK rents hit another record high
Some tenants look outside UK to escape high rents – claim
Gas Safety tips for agents to pass to landlords and tenants
COMMENT: Will labour come round to loving landlords?
Big rent premiums found in locations near Crossrail stations
Trend of more tenants with fewer rental properties to continue, agents say
Rogue landlord illegally evicted family at christmas
Rental market sees surge in demand as academic year begins
Tougher powers over HMO’s to be subject of autumn consultation

Newsround will be back next week.

Welcome to our first Newsround of September.

Let’s see what has been happening in the news this week as the government come back from its summer recess.  We start off with EPC’s.

Bigger government incentives needed for EPC changes

Rightmove has conducted a survey over the summer that states that it will take decades for the PRS to conform to the impending EPC requirements and that incentives are required to accelerate landlords in getting to the target EPC rating of C or even better.

They claim it will take 31 years until 100% of privately rented homes achieve a C rating, and for privately rented flats it would take 16 years.

Lower-rated properties are less inclined to be purchased, with 61% saying they would not buy a rental home of a rating below C, up 47% from last year. The report claims that 50% of homes up for let have an EPC rating of D or below.

Incentives such as stamp duty rebates, grants or tax benefits for green initiatives should be offered by the government. Furthermore, a higher EPC rating could further increase its value by up to 15%. Tenants are looking for properties with lower energy bills, with nearly one in five saying that is now a major factor when looking for a home.

Rightmove spokesman, Tim Bannister says

It’s clear that the current incentives aren’t yet big enough to make people sit up and take notice, and even the incentives that do exist aren’t easy to find out about.

He further adds

The days of building energy inefficient homes is already over, and we need to get to the point when running an energy inefficient home is a thing of the past. People need to know what to do, in what order, why they are doing it, and what benefits it will bring. Our analysis does show that our housing stock is going greener, but more needs to be done to speed it up.

Rent Controls are not good for the PRS

The NRLA has run a survey via YouGov, and they claim that 37% of landlords would reduce their number of let properties if any form of rent control was bought in. They add that this would be catastrophic for the supply of housing and put more pressure on the ever increasing demand.

Often, these measures give no incentives for landlords to invest in property upgrades, and tenants tend to stay put, making the problem worse.

Whilst the English government has no plans to introduce these measures, clearly Scotland has decided otherwise.

NB We wrote about rent controls here.

New Scottish reforms for landlords & rent controls to stay

First Minister Humza Yousaf has this week set out his plans to introduce a new housing bill giving tenants more rights whilst also dealing with homelessness and rental housing supply shortage.

Yousaf wants to give councils more powers to raise council tax on second homes and to purchase empty properties that can be converted into affordable housing. They will also invest £750 million into new affordable homes. He says

The Scottish government will continue to work with vital stakeholders across landlord and tenant groups as it crafts a tailored approach to this crisis that suits Scotland’s unique needs.

He has also stated that the Scottish rent freeze will remain until 31st March 2024. However, a coalition of landlords and letting agents are seeking a judicial review of this legislation.

Slow progress of reform bill impacting older tenants

A third of older tenants are living in fear of being evicted, according to Shelter, and the slow progress of the Renters Reform Bill is not helping their cause. They claim that every 16 minutes, a tenant over the age of 55 is being evicted. Shelter is now pushing the government to ‘scrap no-fault evictions and protect at-risk renters from the threat of Section 21’.

Polly Neate from Shelter says

We hear from hundreds of over-55s who have worked for decades in search of safety and security later in life – it’s a disgrace that so many are being stripped of a stable home by the gross injustice of Section 21 no-fault evictions.

The government must keep its word, and get the Renters (Reform) Bill over the line. Tenants are tired of waiting for a system that makes private renting safe and fair for all.

Other experts have pointed out that despite S21 going, landlords will still be able to evict under mandatory grounds such as selling or moving back into the property.

Snippets

Industry survey shows continued opposition to S21 abolition
Deprived areas hit hardest by shortage of rental stock
Tax (not rental reform) is real reason why landlords quit – claim
AGAIN? Landlord quizzed by seaside council over licencing renewal plans
John Lewis faces ‘extreme challenge’ over property projects profitability
UK rents rise faster in deprived areas – and drag more people into poverty

Newsround will be back next week

We will be running our popular Essential Law for Landlords Workshop on 23 November 2023 – watch the video below to find out more:

Details in a nutshell:

• Title: Essential Law for Landlords Workshop November 2023
• Date: 23 November 2023 (10.30 am – 4.30 pm)
• Trainer: Solicitor Tessa Shepperson
• Venue: Online only
• Cost: £180 (including VAT)
• Recordings: will be available for 3 months after the event
• CPD: Certificates provided for attendees (4 hours)
• Moneyback guarantee

Click here to find out more and book your place.

NB If you are reading this via a blog mailing, you will need to click to view the post to watch the video.

I often get questions about what to do about pests. Bed bugs seem to be particularly problematic, but it is upsetting for tenants to find ANY form of pest or vermin in their home.

What should you do about it? And who is responsible?

Here are the relevant issues:

Was the property infested when the tenant moved in?

If so, it will be the landlord’s responsibility to deal with it.  Landlords are now required to provide a rented property that is fit for human habitation, and a property with bed bugs, mice, rats and other nasties will not be considered ‘fit’.

Sometimes, landlords try to brush this sort of thing off by saying that the vermin were introduced by a previous tenant. Well, that’s not a valid excuse!  Landlords should check properties thoroughly between tenancies to make sure that, among other things, there is no infestation.

For example, this sometimes happens if tenants bring in second-hand furniture which is infested.  So, if you are a landlord, make sure you check the property out thoroughly.

If the infestation is picked up fairly soon into the tenancy, the tenants may be entitled to ‘unwind’ the tenancy if the landlord fails to deal with it.  If they do this within 30 days they can recover all payments made.  Otherwise, they need to do it within 90 days.

Tenants can find out more about this from the Renters Guide by doing a search on ‘unwind’.

What is the situation if the infestation starts after the tenant moves in?

This will depend on the reason for the infestation. For example

• If rats get in because there are holes in the wall that the landlord has failed to repair, it will be the landlord’s problem, and the landlord will be responsible for dealing with it (and paying any costs)
• However, if vermin are attracted to the property because of the tenant’s fault – for example, if the rubbish is not dealt with properly and there is festering food lying around, it will be the tenant’s responsibility.  If the landlord agrees to deal with the problem, he will be able to claim the cost back from the tenant’s deposit – provided he is able to justify this if the tenant later the charge to adjudication.  So, if you are a landlord, make sure you keep any evidence, such as reports from tradespeople brought in to deal with it, as to the reason for the problem.

Getting advice

If you are a tenant and are not sure what to do, consider

• Getting someone from the Local Authority Environmental Health Department out to have a look.
• Or maybe getting an inspection done under the Housing Health and Safety Rating System.

Taking action

I can speak from personal experience with the Local Authority. They were very helpful several years ago or so when we had a rat in our house.

The rat got in through a small hole in the wall (now blocked up) and duly died a death from poison while we were on holiday. Its corpse awaited us in the bathroom on our return, and was duly disposed of by my husband.

So the Local authority service is definitely an option.

Local authorities, though are short on staff and resources.  You may get quicker service from one of the specialist pest eradication services which are around – you will find them on the internet, often with helpful articles on their websites.

So who pays?

The person who is legally responsible. If it is difficult to work this out, probably the best thing to do is to split the cost.

This is an updated version of a post originally published in September 2011.

Welcome to our first Newsround for September, let’s see what has happened in the housing news this week.

Landlords withdrawing from the temporary accommodation sector

Feedback from Local Authorities seems to indicate that more and more landlords, particularly in London, are no longer willing to help Local Authorities comply with their statutory duty to house the homeless.

Landlords are increasingly evicting homeless families in order to sell the property or rent to private tenants.

Local Authorities (after many years of right-to-buy sell-offs) now have limited accommodation of their own to use to house the homeless, many of whom they have a duty to rehouse if applicants are deemed to be in ‘priority need’.

So, they are very dependent on the private sector.

A few have been buying property to help them house the homeless, but with stretched budgets (and some on the verge of bankruptcy), many Councils cannot afford this.  So a reported loss of 6% of London’s total temporary accommodation stock is not good news.  It has resulted in a dramatic 781 increase in homeless families placed in bed and breakfast beyond the six-week legal limit.

Bearing in mind also that research carried out by the London School of Economics shows that there has been a 41% reduction in properties in London available for private rent since 2020.

Darren Rodwell, London Councils’ executive member for regeneration, housing and planning, said:

Across London we see landlords withdrawing their properties from use as temporary accommodation, meaning that boroughs run out of alternatives and place families with children in unsuitable B&Bs.

The homelessness situation in London is becoming unmanageable. We need the government to work with us in reversing the numbers relying on temporary accommodation.

But will they?

Government’s favouring of ‘build to rent’ criticised

LandlordZone reports on mortgage and financial experts criticising the government for their focus on build-to-rent and large commercial landlords, such as Legal and General and John Lewis who are moving into the PRS, while increased financial pressures and regulation are squeezing out smaller landlords.

To, it is believed, the detriment of tenants on tight budgets.

Graham Cox of SelfEmployed Mortgage Hub says:

The current administration is ideologically averse to building social housing at any great scale, they think the private rented sector can take up the slack.

They absolutely envisage a future where big corporations will own most of the privately rented housing stock, house prices continue to soar, and the average Joe is priced out of owning their own home.

Joe Garner of Joe Garner Consulting says

The real agenda has now unfolded: a massive shift of private property into the hands of corporate giants and deep-pocketed investors,

And Peter Stamford, director of Moor Mortgages saying

The government is pushing homes into big corporate hands, side-lining everyday landlords. These big players chase profits, often ignoring affordable housing. We need both small and large landlords for a fair housing market. We need to challenge this before it’s too late.

Presumably, all this will have nothing to do with large corporations and builders’ donations to Conservative party funds …

Landlords warned about flouting licensing rules

A large licensing scheme in Birmingham due to start shortly will require landlords to apply for a licence by Monday, September 4th 2023.

Details of the scheme can be found here, and note that it only covers 25 of the 69 Birmingham wards – if your property is outside those areas, you do not need to worry.

However, it appears that many affected landlords, hostile to the scheme, are listening to advice on social media and refusing to apply.  According to this post, only 15% have signed up so far.

Failing to apply, though, would be a mistake.  If you fail to obtain a license, you will be committing a criminal offence.  You will be making yourself vulnerable not just to prosecution and fines but also to claims by tenants for a rent repayment order.  Which could prove VERY expensive as these rent repayment awards can be for up to 12 months’ worth of rent.

Tenants must be rubbing their hands with glee at the prospect.

So, if you are affected by this – be very careful indeed about listening to advice –  on social media or elsewhere – to ignore the new licensing requirements.  Unlike solicitors, social media influencers and the like are unlikely to be covered by insurance, so you will not be able to claim compensation if you suffer financial loss by following their guidance.

Snippets

Landlord repays thousands in rent after second incident in seven months
Climate change will hugely increase demand for greener short lets, says expert
Haringey Council reveals 43 fines totalling £217,000 for rogue landlords
Retrofitting rental homes will boost the UK economy, study shows
Police told to start arresting landlords who illegally evict tenants
End landlord squeeze or face social breakdown, Ministers warned
Banning orders against rogue landlords have been a flop, new data shows
Fraudsters trying to take advantage over lack of supply in student accommodation

Newsround will  be back next week

Here are our blog posts for August.

Friday 4th August

Landlord Law Newsround #302

Our first Newsround for August

Tuesday 8th August

Outrageously high right-to-rent fines due to come into force in 2024

Read about the impending changes to right-to-rent fines

Thursday 10th August

Can a tenant’s notice period be increased to two months in a contractual periodic tenancy?

A question from a tenant who used my Landlord Law Blog Clinic

Friday 11th August

Landlord Law Newsround #303

Keep up to date with housing news and more with our Newsrounds

Thursday 17th August

Urban Myth – you don’t need to get a possession order if you use an abandonment notice

Another urban myth dispelled

Friday 18th August

Landlord Law Newsround #304

Landlord Law’s Weekly News items

Monday 21st August

What can a new tenant do if there is no bed in the property?

A question from a tenant to the Blog Clinic this week

Thursday 24th August

Is a ‘compliance fee’ charged by a letting agent consistent with the agent’s fiduciary duty?

A question asked by one of our Landlord Law members via our active member’s forum.

Friday 25th August

Landlord Law Newsround #305

Our last Newsround for August

Saturday 26th August

Is it illegal to require tenants to pay rent if it is more than six years overdue?

A question asked from a tenant via our Blog Clinic

Further Reading

Landlord Law News Blog

• Our Free Ebook – 25 Critical Issues for Landlords
• A new edition of Tenancy Agreements The Complete Course is now online
• New content dealing with the dangers of exploding e-bike and e-scooter batteries

For more housing news, follow me on twitter and the Landlord Law Facebook page

Click here to get the weekly roundups sent direct to your email ‘in box’ every week – the easy way to keep up with what’s happening on the blog

We had a question for our Blog Clinic recently from Mary, who is a tenant in England.

Mary is a social tenant, and her question (which I am not going to answer in full as we do not cover social housing here) was about her local Council, which had discovered that she owed £1,800 from a previous address.

As a result of this, they were refusing to allow her onto the Local Authority’s ‘choice housing register’ to bid for a bigger property.

She went on to say:

My partner has been browsing the internet and found under British law, the Limitation Act of 1980.  This says that any council or landlord in the United Kingdom can only pursue rent arrears for a maximum period of six years.  So, therefore it has to be written off by law, and any money paid by me would have to be paid back as they are breaking British law.

So, let’s take a look at the Limitation Act and see if she is right.

The Limitation Act 1980

This is an act that basically sets limits on the time period when a creditor can bring proceedings against a debtor through the courts.

There are different time limits for different types of claim, but rent arrears is covered by section 19 which says:

Time limit for actions to recover rent.
No action shall be brought, and the power conferred by section 72(1) of the Tribunals, Courts and Enforcement Act 2007 shall not be exercisable, to recover arrears of rent, or damages in respect of arrears of rent, after the expiration of six years from the date on which the arrears became due.

So Mary’s partner is correct in part.  However, the Limitation Act is all about time limits for bringing court proceedings. The words ‘no action shall be brought’ means court action.

The interpretation section of the act, section 38, describes ‘action’ as follows:

(1) In this Act, unless the context otherwise requires—
“action” includes any proceeding in a court of law, including an ecclesiastical court(and see subsection (11) below);

and

(11) References in this Act to an action do not include any method of recovery of a sum recoverable under—

(a) Part 3 of the Social Security Administration Act 1992,

(b) section 127(c) of the Social Security Contributions and Benefits Act 1992, or

(c) Part 1 of the Tax Credits Act 2002,

other than a proceeding in a court of law.

So, I am afraid Mary is incorrect in saying that any money paid by her would have to be paid back.  The money is still owed, even though the creditor has lost his chance of claiming it through the Courts.

For example, so far as I am aware (and do post a comment if I am incorrect, benefit issues are not my ‘area’), it would be legal for the Council to withhold benefit payments until the £1,800 is cleared.  Offsetting is not the same as bringing an ‘action’ or court proceedings.

This is also why if you owe money to a bank, they can transfer money from any other account you have with them, which is in credit, to cover it.

So, I suspect that the Council are acting legally when they refuse to allow her onto the housing register.  There may well be rules about eligibility, which include long-standing rent arrears due in respect of an earlier property.

When does the limitation period start?

There is also the fact that the limitation period may start a lot later than you think.  If you owe (for example) £6,000 dating back seven years, but five years ago, you confirmed in an email that you owed this money, the limitation period will run from the date of the email, not the date that the debt fell due.

Or, if you paid £200 off the debt four years ago, the limitation period will run from the date of payment.  Note that the payment can be made by anyone, including by a debt management company or advice agency acting on your behalf.

So, in short, the limitation period runs from the last time you acknowledged or paid part of the debt.

However, the following do not count as written acknowledgement of a debt:

• A letter from you to the creditor clearly stating you don’t owe the debt
• A letter from the creditor to you
• Speaking to a creditor over the phone

It is sometimes quite difficult to work out when a limitation period starts so if you are not sure, it is best to take legal advice.

The situation in Scotland

Finally, my research has told me that the situation is different in Scotland.

Here, the limitation period is normally five years, and after that time, the debt becomes prescribed.  Once a debt is prescribed, the law says it no longer exists, so there’s nothing more the creditor can do to collect it.

So, if Mary lived in Scotland, her question would be largely correct.  Sadly (for her), though, she lives in England.

Our last Newsround for August, and as we come to the end of the summer recess, there is no shortage of housing news.

Should landlords permit childminding in their properties?

In the news this week, the Children’s Minister Claire Coutinho has written to social landlords and developers urging them to review their restrictive clauses on tenant contracts, with special consideration to childminders.

Stats show that the number of child minders has more than halved over the past 10 years, and this is being blamed on not getting permission from their landlord, mortgage lender and insurers.

Ben Beadle from the NRLA has joined forces with the Department of Education to see how private landlords can help this crisis, he does, however say that landlords should not be blamed for the ‘systemic issues in another industry’. Furthermore, landlords need to be able to take higher deposits or additional rent to cover any potential extra damage and higher wear and tear. He says

No landlord wants to stand in the way of the provision of childcare, but the Government must recognise that housing providers are not the issue. The Government’s encouragement to landlords to ‘be open-minded’ is no-doubt well-meaning but fails entirely to acknowledge the very real issues facing the childcare industry or the legitimate concerns of housing providers.

He adds

Mortgage lenders and insurers need to be more flexible in enabling landlords to allow childminders to operate from the properties they let. Tenancy deposits must also be allowed to reflect the greater risk of damage to properties being used for childminding.

Bad news for students seeking accommodation

There is 25% less student accommodation available this autumn than four years ago, yet there is a large rise in student numbers this year. Rents are also up, giving huge challenges to students finding a place to live within easy reach of their chosen university. Toby Parsloe of Savills says

The UK has a record 2.3m full-time students, 91,000 more than last year. UCAS applications have remained elevated since the pandemic, as economic uncertainty has pushed many younger people towards higher education to make them stand out in an increasingly competitive job market.

This is likely to get worse, not better in future years and is coupled with fewer rental properties on the market due to the current cost of living crisis. It is also country wide rather than being localised to one area. He adds

Issues with undersupply in the UK student rental market have been bubbling for many years, but are becoming even more prominent with signs of private landlords selling up in response to rises in interest rates, reductions in tax relief, and the fact that many who bought when buy-to-let took off in the early 2000s are now reaching retirement and looking to sell.

The student sector will always be in demand.

Scammers target the rental market

There has been an increase in scammers placing fake property listings on sites like Facebook and Gumtree that replicate genuine properties.  The scammers change the contact details, have fake links and pretend to be the landlord when contacted.  They then disappear once the deposit has been paid. Action Fraud say scams are up by 23% from 2021 with 541 cases alone last month.

The scammers tricks are getting more and more desperate, asking for deposits to view properties, letting properties they don’t even own, or letting a property to multiple tenants. Prospective tenants are being advised to try and verify landlords, check the land registry, before parting with any money, use reputable letting agents, and don’t be put under pressure.  If the price is too good to be true – then it probably is fake.

Jonathan Rolande, from the National Association of Property Buyers says

It’s always better to be cautious and thorough in your research before making any financial commitments or sharing personal information and if you can, use a legitimate letting agent to rent your next home.

The problem is being driven by a shortage of rental properties and tenants are having to act quickly to avoid bidding wars. The average monthly rent rose to an all-time high of £1,273 in June, a third higher than the £951 in June 2021. There were almost 66,000 rental properties listed on Gumtree, the online classifieds advertising site, between January and June. These had more than a million replies.

Council is slammed for severe misgovernment

Newham council in London has been accused by The Housing Ombudsman of ‘severe maladministration’ in its own management of a damp and mould case which took three years to resolve.  Whereas just earlier this week it threatened private landlords with ‘unlimited fines’ and saying they would take control of their properties if they did not sign up to their mandatory Selective licensing scheme.

Richard Blakeway, of the Housing Ombudsman, said

There were significant failings throughout this case which left the resident living with damp and mould for an unreasonable amount of time.

Despite repeated issues with communications from its repairs team, the landlord [Newham council] did not change its approach and take ownership of the resolution of the issues.

He adds

I welcome the landlord’s response to the lessons from this report and its extensive efforts to put in place a stronger and more proactive approach to addressing damp and mould.

Newham council had 42,000 licensed properties from 2018 to July 2023, with 2,620 breaches under investigation and 387 final penalty notices issued.

Hopefully, the council will see the irony of their orders and be proactive towards themselves.

New advice Q&A to help tenants

A new ‘question and answer’ type tool to help tenants who have repair or maintenance issues has been launched, under the radar, by The Ministry of Justice. It is called ‘How to get repairs done in your rented home’ and takes tenants through a series of ten question and answers which can help identify if a tenant is subject to a ‘revenge eviction’.  It ends by advising them to either seek more information about their rights, get in touch with their council or seek legal aid.

Julie Ford a mediation expert says

It feels like the Gov are sneaking these new tools under the radar on purpose – it is all becoming very ‘pro-tenant’ with a stealth-like advance following on from [the Government’s] recent anti-landlord rhetoric.

It is felt that this is yet another initiative by the government to try to improve conditions and recourse for both private and social housing sectors following the tragic death of Awaab Ishaak last year who died from mould in his home that was not dealt with.

Sean Hooker from the Property Redress Scheme has said that what is really needed is a private rented sector ombudsman for repairs to be set up ‘as quickly as possible’.

Snippets

Council threatens to take control of landlord properties
Court delays for landlords evicting tenants ‘at their worst for 30 years’
Tribunals ‘not fair’ and weighted towards tenants’ says frustrated landlord
Cleaning is still the biggest cause of deposit disputes
Landlord Banning Orders not used because of council cuts – claim
UK’s landlords not tenants need funding help to meet EPC targets
Letting agents warned after firm caught taking fees from tenant’s deposit

Newsround will be back next week.

One of our Landlord Law landlords, who I will call Mr X,  has asked, on our Members Forum, about a ‘compliance fee’ charged by his letting agent.  This is on top, apparently, to the 12% commission he already pays.

He was a bit startled to be charged this additional fee and has now discovered a clause buried in his agency agreement which says:

In consideration of the Landlord paying the Compliance Fee the Agent will indemnify the Landlord for a fine or penalty that arises from the Agent’s failure to ensure compliance with the Landlord’s statutory responsibilities (your “Compliance Requirements”) as discussed below. This indemnity does not extend to any tax, interest thereon or other penalties levied either on the Landlord or the Agent as a result of letting the Property and is provided subject to the Landlord doing the following:

The agreement then goes on to list a number of conditions on the landlord, which include

• Instructing the agent
• Complying with their (the landlord’s) legal responsibilities (including getting any necessary permission to let and any HMO or other licenses)
• Providing the agent with clear and accurate instructions
• Not preventing the agent from carrying out their duties
• Paying the agents compliance fee throughout the tenancy in addition to other fees
• Giving immediate instructions and providing any necessary funding in cleared funds

Going on to say that ‘A Compliance Fee Indemnity will not be provided where a liability arises when the Tenant has been in any way obstructive.’

So, the implication seems to be that if the compliance fee is not paid, the landlord has no redress if the agent ignores all relevant legislation and lets the landlord in for substantial fines and penalties.

Likewise (even if the compliance fee has been paid) if the tenant (chosen by THEM) proves to be obstructive.

What this could mean

So, for example, if the agent took a deposit from the tenant and failed to protect it within the 30-day period, could the agent use the landlord’s non-payment of a compliance fee to defend any claim that the landlord might make against the agent if they are sued by the tenant for the penalty?

Or if the agent failed to obtain a Gas Safety certificate and the landlord is prosecuted by the HSE?

Mr X is resident abroad and so is totally dependent on this agency.  So, if the agents allow five sharers to rent the property and then fail to obtain an HMO license – would they be able to claim that he cannot pass on any fines that might be imposed on him by the Council?  Even if Mr X has paid the compliance fee?  Even if he had no idea that five unrelated tenants were renting the property?

An unfair clause?

Mr X owns this property in his own name (i.e. not through a company), and so, as a ‘consumer’, he can claim that this clause is unfair under the Consumer Rights Act 2015.

However, what about landlords who cannot claim the protection of the Unfair Terms rules?

Under agency law, agents are subject to a fiduciary duty.  This is described in the case of Bristol & West Building Society v. Mothew in 1998 as follows;

A Fiduciary will have the highest duty of care. He is expected to be loyal to his  Principal and not put his own interests first. He must not profit from his position as a Fiduciary unless his Principal consents, and must not put himself in a position where he has a conflict of interest.

Is this consistent with a clause effectively making the agent’s liability for negligence under the contract conditional upon the payment of a fee?

Your comments, please?

Have any readers seen any similar clauses in letting agent contracts (this agency told Mr X that this sort of fee was normal and charged by all agents). Have YOU got this clause in your agency agreement?

I would be very interested to hear from anyone with a view on this.  You will find our comment box below (note that comments close after 3 months).

Here is a question to the blog clinic from Mary (not her real name), who is a tenant in England.

My friends and I agreed to rent a property described as a ‘furnished three bedroom flat’ in a joint tenancy. When we viewed the property, there was no bed in the third bedroom, but the letting agent assured us it would arrive before our tenancy start date. This was documented in our offer letter and in multiple documents produced by the letting agent, including the Notification of Letting, where it clearly stipulates that the landlord was to add a third bed and mattress prior to the tenancy commencement date. 

It was not noted in the tenancy agreement itself, but all parties agree it was to be provided. 

It is now a week into our tenancy and there is still no third bed. The letting agent has said that there was a mixup with the furniture company and he doesn’t know when the bed will be delivered. I know we are not legally entitled to withhold rent, but if we were to sue the landlord for breach of contract, do you know what damages we would be entitled to? I am able to stay friends until next week, so have not actually incurred any loss thus far except massive inconvenience, but it does not seem right that we have to pay rent for a property we cannot live in as a three tenant household as a result of this breach. 

Additionally, if there is still no bed in the property by next week, will I be entitled to stay in a hotel and claim these costs back from the landlord?

Answer

This is a breach of contract, and so you would probably be able to claim compensation but only in court proceedings – which I suspect you will not want to do in view of the chaotic state of the courts nowadays.  Most claims are being seriously delayed, and it could take many months for your claim to be dealt with. 

The compensation would probably be based on the fact that one of the rooms cannot be used for a period of time.  So if there are four rooms in the property and you can’t use one of them for a month and the rent is £400 your compensation would be in the region of £100.  The level of compensation is normally based on the rent – so tenants of cheaper properties tend to get lower awards.

I do not think that you are entitled to go and stay in a hotel, but you CAN use a little-known procedure to ‘unwind’ your tenancy.  If you do this within 30 days of the start of the tenancy, you are entitled to recover all money you have paid.  There is some guidance on the Shelter website here.   

The problem is I suspect that you do not want to end the tenancy; you want the bed!

The other thing you can do is complain to your letting agents’ Property Redress Scheme although it is possible that they may not make any award as the fault is really the landlords, not the letting agent.

You could maybe suggest you buy a bed and offset the cost against the rent – this will probably be cheaper than staying in a hotel.

Keep pushing the agency, though and threaten to report them to their Property Redress Scheme, and maybe also threaten to issue proceedings for compensation against the landlord (you don’t actually have to start a claim!), as the more fuss you make about this, the more pressure the agents will put on the landlord to resolve the issue.

Welcome to our weekly Newsround where we give you all the trending housing news. Let’s see what has been in the news this week.

Migrant checking will not be easy

One law firm, Brevis Law, has warned that the new measures coming into force in January 2024 for landlords and employers to check the status of their employees and tenants to prevent migrants living here illegally is fraught with risks if check are not done correctly.

Mandie Sewa, Head of Immigration at Brevis says

Most employers and landlords are not experts when it comes to UK immigration law and it’s clear that they are not being asked to check just one or two types of visas but a vast array.

Simple innocent errors could lead to huge fines, criminal prosecution, revocation of sponsor licences, possible claims of discrimination and reputational damage, especially as the Home Office releases quarterly reports in which they ‘name and shame’ employers that are found to have hired illegal workers.

She adds that the huge fines being introduced along with the reports could seriously put livelihoods at risk. Landlords will need to proactively mitigate their risk exposure by carrying out extensive checks on their tenant’s right-to-rent status, and stay up to date with all the current guidelines.

We wrote a post on the new increased fines here.

One in three homes at risk of overheating

According to new analysis out from the Resolution Foundation think tank, one in three homes are at risk of overheating, putting occupants at risk of fatal heat exhaustion, heat stroke and other cardiovascular and respiratory issues. It wants the Decent Homes Standard to be updated to say that homes should not become too hot as well as too cold.

They point out that it will be the poorest households who will be most affected by these extreme temperatures as it is usually flats and smaller homes most exposed to these extremes. Other factors include age, overcrowding, location, ethnic minority households and those that are in rented properties.

They also state that the same goes for workplaces as well. A representative said

With soaring summer temperatures of 40^oC and above set to become normal in the UK, one of the main ways that climate change will impact the UK will be through the heightened risk of overheating, in both our homes and our workplaces.

Alongside their goal of reaching net zero without unfairly burdening lower-income households, policy makers must also ensure that people are protected from the dangers of climate change, including soaring summer temperatures.

Scotland to re-evaluate EPC system

The Scottish government are saying that EPC system as it currently stands will not meet the net-zero targets or drive forward energy efficient improvements and they want to reform the metrics and use an emmissions rating along with an energy use indicator.

They also want a fabric rating and a heating system type to give tenants and homeowners a better view of what they are buying or renting.

A consultant says

EPC metrics are widely used to provide information on a home, and yet, the current metrics do not accurately reflect the fabric efficiency of a home nor do they support our transition to net zero.

To address this, we are proposing to reform the current metrics to provide more holistic information about the efficiency of a home that is relevant to owners and occupiers.

These plans have yet to be made law, but it could be a better way of measuring efficiency.  Hopefully something similar will. be done in England too as it is generally believed that the current EPCs are not fit for purpose.

Don’t skimp on EICR reports

It looks like the cost of an EICR report can play a major factor when landlords are looking to get a report carried out, and without intending this, are putting their tenants at risk of fire when they opt for a cheaper electrician to carry out the report.

As we all know, landlords in the PRS have to have an electrical inspection under Section 5 of the Electrical Safety Standards Regulations 2020, and this should be done by a ‘qualified competent person’. However, there are now short courses out there that claim to train almost anyone for testing electrical installations. Consequently, landlords may unwittingly hire one of these as they are cheap, and risk putting their tenants at risk rather than selecting the most qualified electricians.

Some councils with selective licensing schemes will only accept reports carried out by a NIC/EIC or NAPIT registered electrician.

Phil Turtle, a fire compliance expert says that the low price may seem like a good deal on paper but cheaper inspections do not provide the correct level of detail to ensure tenants’ safety. A flat inspection should take around three hours but some of the cheaper inspections have been known to carry up to 10 inspections a day, which is not enough time to carry out a thorough check. He adds

As a responsible landlord, you have a duty to ensure that your tenants are safe and secure in their homes. That’s why we recommend that you use the services of a reputable company to carry out an inspection that only uses properly qualified NIC/EIC or NAPIT-registered electrician. Please don’t put your tenants’ lives at risk by cutting corners.

You can find a registered tester on the Registered Competent Person Website.

Snippets

Fixed Penalty Notice for rogue landlord who ignored improvements orders
Tenant jailed after conning kind-hearted landlord out of £212,000
Adverts for rented homes must be more accurate says Trading Standards
Landlord worried over plans to bring in compulsory ombudsman
Offical: Rental property shortage raises rents at fastest rate in seven years
Rising mortgage rates have reduced landlord earnings by £4,000 on average this year

Newsround will be back next week

When I started acting for landlords, I had never heard of abandonment notices. I suspect that most lawyers reading this won’t have heard of them either. So far as I am aware, they are not mentioned in any of the law books.

However, they are a well-known tactic among landlords and letting agents. And in particular, (so I understand), social landlords.  What are they?

What is an abandonment notice?

An abandonment notice is a notice fixed to the outside of premises which a landlord believes to have been abandoned by his tenant. It gives notice that the locks have been changed and informs the tenant that should he return within a specific period of time (e.g. 14 days), he can obtain the keys from the landlord, but that if he fails to return during that time, the property will be repossessed.

It is understandable why landlords and agents want to use these notices. Court proceedings for possession can be expensive and time-consuming. While they are ongoing, landlords are losing rent. Posting a 14-day abandonment notice gives the illusion of doing something legal and means that they don’t have to pay legal costs to those pesky solicitors.

But is an abandonment notice legal?

Personally, I think they are not only a complete waste of time but also a risky course of action. Why?

Well, most importantly, the Protection from Eviction Act 1977 makes it clear that it is both a civil wrong and a criminal offence to repossess a property other than via a court order for possession. So any landlord who repossesses without one is always taking a risk.

Implied surrender

There is a legal rule which states that if the conduct of the tenant is inconsistent with an intention to continue with the tenancy, this will be considered to be an implied surrender of the property, which the landlord can accept by going in and changing the locks. However, it is the action of the tenant which creates the implied surrender, not the action of the landlord in posting a notice on the door.

If a tenant has genuinely abandoned the property, if it really is an implied surrender situation, then an abandonment notice is unnecessary. The landlord can repossess immediately. The usual signs of a genuine abandonment are failure to pay rent combined with removal by the tenant of all his possessions and, most importantly, leaving the keys behind. Giving up the keys is generally considered to be a symbol of giving up possession of the property.

Long absences

However, if the tenant is just not there for a long time, this does not necessarily mean he has abandoned the property. He could be on holiday, he could be in jail, or he could be in hospital. None of these situations entitles the landlord to recover possession without a court order.

If a tenant comes back from being hospitalized for six weeks after a nasty car accident to find that his property has been repossessed by his landlord, the fact that an abandonment notice was posted on the door for 14 days will not, so far as I can see, afford any defence whatsoever to a claim against the landlord for unlawful eviction, compensation, and (if the property has not been re-let) an injunction ordering the landlord to let him in again.

How can the tenant be expected to see an abandonment notice if he is laid up in hospital?

There is another problem with these notices. If they are fixed to the outside door, you are telling people that the property is empty. Which might be something you would prefer burglars and potential squatters not to know about.

Is there ever any point in using an abandonment notice?

In my view, it will not afford any defence to a civil claim against the landlord for unlawful eviction. However, unlawful eviction is also a criminal offence. It is just possible that leaving a warning notice on the door could afford some sort of defence to a prosecution for unlawful eviction.

However, I have not been involved in any prosecutions myself – if any Local Authority prosecutors are reading this, please can you leave a comment?

If abandonment notices are ever used, they should only be used on internal doors, perhaps for a room in a shared house. Don’t invite problems by putting them on the external street door. And bear in mind that they are probably a complete waste of time.

Have you used an abandonment notice? Have you any views on their legality? Are you aware of any cases where they have been used successfully as a defence to either a civil or a criminal claim for unlawful eviction?  Post your comments below:

Welcome to another Newsround, let’s see what has been happening in the housing news this week.

Huge fine increases for failures in Right to Rent checks

A law firm is predicting that some landlords could face bankruptcy due to the government increasing fines if they are found to have let their property to unauthorised migrants. Landlords could face penalties up to £5000.00 per lodger and £10,000.00 per occupier for a first breach, this is up from £80 and £1000.00 respectively. These new fines come into force from January 2024.

Repeat breaches rise to a staggering £10,000.00 per lodger and £20,000.00 per occupier.

Gary Scott, a partner at Spector Constant & Williams says

This announcement is a further nail in the coffin for amateur landlords. The expectation seems to be that landlords should somehow become a branch of the Border Force.

He goes onto to say

Landlords, especially those with four or fewer properties and which make up over 50% of the total number of rented flats in the private rented sector, are not equipped or trained to carry out the role of a Border Force agent. The additional burdens on landlords brought in by the Government have already driven many from the market and this measure is likely to see many more follow suit.

This is also a potential peril for letting agents who do these checks on behalf of landlords.

According to Robert Jenrick, Immigration minister, since 2018 landlords have been given over 320 civil penalties to the value of £215,500 when the Right to Rent rules were first introduced. He says

Unscrupulous landlords and employers who allow illegal working and renting enable the business model of the evil people smugglers to continue.

He further adds

Increasing fines will deter employers and landlords from engaging in these illegal and dangerous practices, further deterring people from attempting to come to the UK illegally.

A warning to small portfolio landlords who cannot afford to get this wrong.  We wrote a post about this here.

Propertymark’s appeal to Chancellor

Following the recent debacle from banks closing accounts, Propertymark’s Chief Exec Nathan Emmerson, has written to The Chancellor, Jeremy Hunt to highlight the issues that letting agents have with pooled client accounts because of their risk with non-compliance to anti-money laundering regulations.

Propertymark perceives that this could be due to lack of understanding on the banks part on how letting agents can legally operate in holding clients’ money in an account that is both authorised by the Financial Conduct Authority and also complies with the Money Laundering and Terrorist Financing Regulations.

Nathan Emmerson writes

Banks are taking the stance to de-risk themselves to a point where they are refusing to open new client accounts or maintain existing accounts, some of which have been open for decades without issue. The decisions behind which agents have been allowed to keep their accounts has often been made at the local branch-level, with some banks being less willing to allow agents to keep their accounts than others. This has made it difficult to establish a consistent approach across all bank branches.

The removal of undesignated client accounts poses a serious threat to an agent’s business. It is not uncommon for letting agents to manage hundreds of properties, yet many banks have now requested the agent hold an individual account per property. Even if banks allow the agent to hold that number of individual accounts (which is not guaranteed), it is infeasible to manage that many accounts.

He goes on to say that more action is needed from the government to ensure banks understand the legal obligations of letting agents.

Interestingly, we highlighted the same issue in one of our blog posts back in 2020. The issue has clearly not gone away.

Incentivise EPC improvements

A think tank called E3G involving some high street building societies, and also the NRLA, has written to the government saying that there must be some incentives given to landlords to improve the energy efficiency in their rented homes. According to them, one in four rental homes is in need of energy-efficient improvements. They say that there needs to be

Simple tax restructuring to allow energy performance management to be offset against rental income could help make investment more attractive for landlords.

Further, they say that the Autumn Statement by the Chancellor in November would be the time to announce some incentives.

NRLA, Ben Beadle chief executive, backs their initiative and says

We all want to see rental properties become as energy efficient as possible, but it is crucial that government sets out a clear strategy and realistic time frame on how landlords can make this happen. Ministers must assemble a clear, workable financial package to give landlords confidence and clarity as a matter of urgency.

You can read their letter to the Chancellor of the Exchequer here.

Younger tenants forego contents insurance

Go Compare has analysed house insurance data and claims that only a third of tenants and other residents under the age of 30 have contents cover for their belongings, their primary reason being that they say that they did not think that they would need it. The other most cited reason for 31% was the cost, and that it was too expensive.

It seems the younger you are the less of the desire to cover your contents with 82% of 18 to 24 year olds not having any contents insurance, and 46% of 25 to 34 years old not either but their reason was simple forgetfulness!

Snippets

Landlord wins praise for offering ‘only locals’ affordable property in town
Northern council prepares planning crackdown against HMO conversions
Complaints about lettings agents go through the roof
Braverman accused of using landlords to do her dirty work
Give councils cash to buy homes off private landlords – call
HMRC pushes up late payment charges for landlords
Company expelled from The Property Ombudsman owing landlord 10k – but appears to still be trading
Student landlords to face turmoil for several years, predicts guarantor firm
At last! Mainstream media support for landlords

Newsround will be back next week.

Here is a question to the blog clinic from Kathy (not her real name), who is a tenant in England.

We’ve signed an AST that rolled into a contractual periodic tenancy (CPT). The notice period is 2 months for the landlord and tenant.

We didn’t realise that it would turn into a CPT and assumed that the legislation applied, that is, that it becomes an automatic statutory periodic tenancy (SPT) on a monthly basis where notice is 1 month.

We’ve been with the landlord for several years and gave 1 months’ notice, but she’s referred us to the clause. Upon reviewing the situation, the notice period for the landlord is 2 months as required by the legislation but double for us as tenants.

Do we have grounds to argue it’s an unfair term and unenforceable?

Answer

Maybe.

Tenants’ notice periods are covered by the ‘common law’ rules and will normally be equivalent to a ‘period’ of the tenancy.  So if there is a periodic tenancy which is monthly, the notice period will be one month.  But if the ‘period’ is two months or quarterly, then the notice period will be two months or three months.

Or rather, the notice must end at the end of the next ‘period’.  So the actual notice period, for a monthly periodic tenancy, will be between one and two months, depending on when in the month it is served.  Or, to put it another way, the tenant must give not less than one month’s notice ending at the end of the next period after one month.

Landlords must give two months’ notice if they want to use section 21, which is why the landlord’s notice period in the tenancy agreement is two months.

Tenancy agreements are covered by the unfair terms rules in section 61 onwards of the Consumer Rights Act, and if the notice period is more than what the tenant would have to pay under the general law, the clause is at risk of being found unfair and unenforceable.

So what notice period should you give?

Well, it will depend on the period of your periodic tenancy.  So I am afraid you will need to check the clause in your tenancy agreement which set up the contractual periodic tenancy, and see what it says.

If the period is monthly, then it is arguable that you only need to give not less than one month’s notice, and the term in your tenancy will probably be found to be unfair and unenforceable under the unfair terms rules.  If the period is two months, though, then a ‘not less than two-month notice period may be reasonable.

There is also the question of payment.  Are you paying monthly or every two months?  If you are paying monthly, then it is arguable, notwithstanding what it says in your tenancy agreement, that your notice period should be monthly.

Depending on what your tenancy agreement says, it may be open to you to leave after one month and refuse to pay the extra month’s rent required by the two-month notice period.  Then if the landlord tries to deduct this from your deposit, refer the matter to adjudication and see what they say.

You could also try to get the issue decided by a judge in the Small Claims court, but this would take a lot longer and be more stressful for you.

It’s not often I am truly outraged by a government announcement, but I have to say that I am shocked and horrified at the announcement of a massive increase in fines for breaches of the right-to-rent rules.

The government announcement states that the fines will increase as follows:

• For lodger landlords, the fine for a first offence will go up from £80 to £5,000, and
• For a repeat offence from £500 to £10,000
• For ordinary residential landlords, the fine for a first offence will go up from £1,000 to £10,000, and
• For a repeat office from £3,000 to £20,000

The new fines are due to come into force at the start of 2024.

These are massive increases and, if imposed for the full amount, could well put landlords and lodger landlords into bankruptcy.

These unreasonable fines

The effect of the new fines on Lodger Landlords

I have to say that I consider these sums to be wholly unreasonable.  In particular for lodger landlords.

‘Proper’ landlords renting to tenants should be aware that the sector is regulated and take care to inform themselves of the rules and regs before renting out their property.

However, traditionally lodger landlords have been less heavily regulated – to the extent that they don’t even pay tax on the first £7,500 income.

People normally take in a lodger when they are hard up, to earn a bit of extra cash.  Lodger landlords are generally just ordinary people – for example, families trying to earn a bit of extra cash to pay for things for their kids, or the elderly trying to supplement their pensions.

What possible justification can there be for slapping a fine of £5,000 on them if they inadvertently rent out their spare room to someone who, unknown to them, is an illegal immigrant?

Many of them will have no idea that they even need to carry out a right-to-rent check, let alone the level of fines involved.  It will be interesting to see if there is any publicity about this.

There is also the fact that, with the current shortage of housing, we should be encouraging people to rent out their spare rooms, not frightening them off.  Surely, every room rented out is potentially one less person sofa surfing or forced onto the street.

The effect of the new fines on Landlords

So far as ‘ordinary’ landlords are concerned, yes, they should be aware of the rules, but with fines of this level, they are going to do all they can to avoid the possibility of being fined.

We already know that the right-to-rent rules cause landlords to discriminate when they otherwise would not do so.

This was found to be the case in the right-to-rent litigation two years ago (explained here by barrister Justin Bates) when the Court of Appeal held that as it was a question of government policy, the discrimination was allowable.

Faced with the prospect of fines of £10,000 per occupier (so if a family of four were let in, the landlord could face a fine of up to £40,000), most landlords are going to be very cautious indeed who they rent to and are likely to avoid anyone without a British passport.  Or even anyone who does not ‘look British’.

So one result of the fines increase is that it is going to be even harder for ethnic minority persons (with a right to rent) to find somewhere to live.

Is this the sort of society you want to live in?

Xenophobia in the home office

Most illegal immigrants are asylum seekers fleeing dreadful circumstances.  We should be trying to help them, not criminalising them.

The Home Office seems to be obsessed with the ‘evil people smugglers’ and totally blind to the (in most cases) wholly justifiable needs of the people on the boats.  Most of whom, statistics show, are usually granted asylum once their case is processed.

That is until the deeply offensive Illegal Migration Act 2023, which renders illegal migrants ineligible ever to apply for settlement or citizenship in this country, comes into force.  The fact that they might be fleeing intolerable conditions is apparently of no interest to our Home Office.

They also refuse to accept that, for many migrants, there IS no legal route to apply for asylum in this country.

What they should be doing instead

I cannot understand why (as I suggested here) the Home Office doesn’t just train more civil servants to carry out the processing so that:

• Those who are found to be genuine cases can be allowed to get on with their lives , and
• Those who have no right to stay can be deported immediately

This would reduce the massive cost of housing people pending processing and provide much-needed workers for the NHS and the hospitality and other short-staffed sectors.

And finally,

The number of people seeking asylum in this country today is almost certainly peanuts compared to the influx of migrants who will be seeking somewhere else to live in future years when climate change (partially caused by us, remember – we started the Industrial use of coal) renders their country unlivable.

We need to prepare for this and put in place procedures for dealing with proper migrants, welcoming them, teaching them English and integrating them into society.  Not penalising landlords who give them a home.

Migrants have always contributed to society and helped our country develop and advance.  They are not, on the whole, criminals and wastrels but good people simply trying to find somewhere they can live in peace.  Over the years, immigrants have made massive contributions to society – what about Mo Farah (for example), and the many Jews who came here during the war?

We should be deeply ashamed of the stance our government is taking.

I do not believe that it reflects the views of ordinary voters (who are, on the whole, kind, compassionate people) – as no doubt they will find out at the next election.

Another week and another Newsround, let’s see what has been happening in the housing news this week.

Bank base interest rates now 5.25%

Many will be feeling despair at the further bank base rate rise, which will almost certainly trigger further mortgage payment increases.

Ben Beadle CEO of the National Residential Landlords has warned that the average increase in monthly repayments on buy-to-let mortgages by the end of 2025 will be about £275.

However, as some landlords have seen their mortgage payments increase by almost 240% since December, this will leave them little scope to do anything other than increase rents.  However much they want to protect their tenants.

If you own your properties outright though, you may not be too fussed, particularly if you have savings.  Although, hopefully, savings rates will start to go up soon – the current low interest rates on many savings accounts is shocking.

Mind you a guest author on Property118 asks whether another interest rate is really bad for landlords, and points out various opportunities, including increased demand and the opportunity to put up rents.

And it seems that Generation Rent have admitted that there has been no rent rise for 40% of tenants.  Not sure how long that statistic will last though.

Heat Pumps?

If you are considering installing heat pumps at your tenant’s property, you may be interested in this BBC program.  This features a property where a new heat pump system is being installed, which cost the householders £18,000!  Not something your average person has in their back pocket.  The government’s £5K grant does not go far with this sort of cost.

There is a commentary on Property118 here.

However, a survey from Landbay claims that many landlords, particularly those whose properties have an EPC rating of D, still plan to press ahead and make changes to reach a C as soon as possible.   It also says that 78% of landlords are aware of the government’s plans.

However, those plans seem to be taking more of a back seat now, with Gove having indicated that he will be giving landlords more time.    This follows their byelection will in Uxbridge and the subsequent flurry of activity to backtrack on environmental promises – which they seem to think will please the electorate.

It may also be due to the government’s increasing awareness of the supply problem with so many landlords selling up.  Press landlords too far and the private rented sector will collapse.

New free court service for tenants facing eviction

This is the Housing Loss Prevention Advice Service. This will provide

• Early legal advice (legal help) on housing, debt and welfare benefits issues to those at risk of possession proceedings and loss of their home; and
• On the day emergency advice and representation at court to those with a listed possession hearing

Individuals using the service will not need to meet legal aid financial eligibility rules (as it is a free service) but will need evidence that they are at risk of losing their home.  A list of providers can be found via this page.

However, doubt has been cast on the scheme due to the lack of suitable solicitors to provide the advice.

Lubna Shuja, President of the Law Society of England and Wales has welcomed the scheme, saying that the benefit of early advice cannot be underestimated.  But going on to say

However, we have continuing concerns as to whether the system will be effective, and about the increasing legal aid advice deserts caused by long-term underfunding of the system.

The scheme is provided by solicitors and therefore contingent on the number of solicitors able to do the work. With rising legal aid advice deserts, there are fewer and fewer legal aid practitioners able to give legal advice.

Those facing eviction will not be able to access vital legal advice if there is no legal advice provider in their area.

The legal advice deserts are the result of systematic cuts in legal aid and legal aid rates to solicitors, making it virtually uneconomic for many firms to offer this service.  I have been writing about this for years, for example, this post in 2011 and this post in 2006.

Looking at the list of providers, I see that it is mostly Shelter offices, Law Centres and CABx, with a few solicitors.  The scheme will no doubt provide a useful extra income for those services and may render some Law Centres sufficiently viable to be able to stay around for longer (many have had to close shop).

However, bearing in mind the number of tenants needing advice, the services listed are almost certainly not going to be sufficient.

If the government is serious about providing legal help to tenants, then it will have to make it economically viable for lawyers to do the work.  There will then need to be a lot of training done as most solicitors, even if they want to do this work, are not sufficiently experienced.

Most of the experienced housing solicitors have long gone – either into retirement or pastures new.  With a few honourable exceptions.

Will it make evictions too costly for landlords?

Several of the news items seem to be criticising this new service because it is going to make it more costly for landlords to evict tenants.  However, I am afraid I have little sympathy with this – landlords should take care to ensure that they are operating within the law and prepare their case properly.

There is plenty of help, either via my Landlord guide or via the NRLA, and if they are uncertain, they should use solicitors.  Making someone homeless is a very serious thing and landlords should be held to account if they fail to comply with the rules.

If you are a tenant facing eviction, this article may be helpful for you.

Snippets

Landlord prosecuted for second time after failing to disclose maintenance costs
Surge in tenants wanting to buy properties off landlords
Unusual legal win by landlord shows appealing council fines can be worth it
Controversial MP to champion landlord concerns in Parliament
Is it fair that councils can fine landlords even though they too break the law?
Landlord to pay tenants £12,500 because ‘innocence of law is no defence’

Newsround will be back next week.

Here are our blog posts for July.

Tuesday 4th July

What are this lodger landlord’s chances of recovering damages through the courts?

This question was asked in the Blog Clinic.

Thursday 6th July

Urban Myth – that section 21 is always bad for tenants

Read my thoughts on Section 21

Friday 7th July

Landlord Law Newsround #298

Our first Newsround for July

Thursday 13th July

Landlord wants to sell but is his section 21 notice valid?

A tenant asked this question in my Blog Clinic

Friday 14th July

Landlord Law Newsround #299

Our look into the housing news and more

Monday 17th July

Urban Myth – you shouldn’t accept rent when evicting a tenant

I explore another urban myth

Friday 21st July

Landlord Law Newsround #300

Housing news and more in our weekly Newsround

Saturday 22 July

Can this landlord evict this tenant if she does not hand over one of her keys?

Friday 28th July

Landlord Law Newsround #301

Our last Newsround of July

Sunday 30 July

Landlord Warning! Your tenant’s e-bike batteries can cause serious fires

Further Reading

Landlord Law News Blog

• What changes are going to happen in the Private Rented Sector and when will they become law?

The Landlord & Lawyer Podcast

• Catchup with Ben Beadle and discussing housing law reform

For more housing news, follow me on twitter and the Landlord Law Facebook page

Click here to get the weekly roundups sent direct to your email ‘in box’ every week – the easy way to keep up with what’s happening on the blog

E-bikes and e-scooters help reduce our carbon emissions and help keep us healthy.  What’s not to like?  Surely it is something landlords should encourage?

Many tenants will own e-bikes (and sometimes e-scooters), indeed, they are often used by delivery riders, for example, working for online retailers such as Amazon.

The Problem

However, there is a problem.  E-bikes and e-Scooters are powered by batteries, mostly lithium-ion batteries.  And in some circumstances, these can explode, causing severe fires.  Indeed fire brigades tell us that these fires are increasing.

The Guardian reported in May 2023 that there had been 102 fires associated with e-bikes and scooters so far in 2023, with a forecast of 338 for the whole year.  At least 190 had been injured and eight people killed.

Now we should be clear here that most batteries are safe.  If you buy your e-bike from a reputable company and look after it properly, you should be fine.

The problems tend to be when cheap batteries or chargers are purchased, for example, off the internet or when batteries are not looked after properly and used when damaged.

However, if a fire does start, it can be very dangerous.  A phenomenon called ‘thermal runaway’ can occur – this is an uncontrollable, self-heating state where chemical reactions are exponentially accelerated and internal temperature go up and up.

If this happens the resulting fire can be ferocious and difficult to put out.  The advice given is not to try, but to save yourself by getting out of the building immediately and calling the fire brigade.

Below is a video released by the London Fire Brigade which shows the moment when a battery bursts into flames leading to a huge explosion:

Legal e-bikes, illegal e-scooters

Although e-bikes are legal, e-scooters are currently prohibited unless they are rented from approved companies in one of the designated government trial areas (as explained here).   They are subject to a speed limit of 15 mph (less in some areas), and riders must have a driving license – a provisional license will do so long as it has a category Q entitlement.

However, despite this, e-scooters are easy to buy if you want one and no doubt many tenants will have purchased illegal scooters and will be keeping them at the property.

So when do batteries cause fires?

It looks as if fires tend to happen if

• Counterfeit batteries have been purchased – for example, cheap batteries purchased off the internet.  These often lack essential safety features.
• Batteries have been damaged – for example, if they have been dropped or punctured in some way.
• The wrong charger is used for the particular battery.
• Batteries have been subject to extreme temperatures – most have a safe operating temperature of between -20°C to 60°C (4°F to 140°F).
• Overcharging – leaving batteries plugged in for long periods of time can increase the risk of fire.

What should landlords do?

You can’t really stop tenants from keeping e-bikes or scooters.  Indeed e-bikes are to be encouraged as they are healthy and help the environment.

If possible, though, try to provide somewhere they can be stored outside the property, for example, in a locked shed or garage.  Ideally, these should have electricity so batteries can be charged here rather than in the house or flat itself.  Then if a fire does occur, hopefully, it will be limited to the shed or garage and will not spread to the property itself.

It would also be a good idea to fit a smoke alarm!

House rules for e-bike and s-scooter owners

I would also recommend having some house rules for tenants keeping e-bikes or scooters, which tenants should sign at the same time as they sign their tenancy agreement.

Make it clear that these are for their safety and explain why – presumably, your tenants will want to avoid fires, too, once they are made aware of the dangers!

For example, these could stipulate that:

• You be notified if they are keeping an e-bike or e-scooter at the property for insurance purposes
• All batteries and chargers must meet official safety standards
• All chargers used should be the official correct charger for the battery concerned
• Batteries should be allowed to cool before charging
• Manufacturer’s instructions should be followed at all times – in particular, note maximum charge levels and temperature thresholds.
• Batteries should not be tampered with or modified.
• Batteries should be checked carefully before charging to make sure that they have not been damaged (e.g. by being dropped) and that there are no cracks, dents, or leaks in the battery casing.
• They should also be kept clean as dust and dirt build up on the battery contacts can cause them to overheat.
• Batteries should not be left to charge unattended and should be unplugged as soon as they have finished charging.
• Batteries should be disconnected when not in use and kept in a battery case or fireproof bag.

Other items to include are not to block fire escapes and not to tamper with smoke alarms – but these should already be in your tenancy agreement.

Property Inspections

Property inspections are essential for many reasons – one of which being that they are required by many insurers!  Doing a property inspection will allow you to check if your tenants own an e-Bike or scooter.

If so, have a chat with them about safety and draw their attention to the problems of fires.  If they are charging batteries indoors, for example, in the kitchen, it is particularly important that you check the smoke detectors there!

I would also recommend that you write to them after your inspection, just saying that you notice that they now have an e-bike, and drawing their attention again to the dangers and safety precautions that they should take.

If you feel unhappy or uncomfortable doing property inspections (and many landlords do), then our Property Inspection Kit can help.

Insurance

Finally, check your insurance to make sure that you are covered for damage from battery fires.  Most landlord insurance should provide for this but it is better to be safe than sorry!

So far as damage to the e-bikes and e-scooters themselves is concerned, this will be down to the tenant’s insurers (a landlord cannot insure his tenant’s possessions), although insurance for hired e-scooters will be provided by the hire company.  So make sure that your tenants are aware of this.  See our free Insurance Mini-course for help on insurance.