RLA responds to Hastings licensing consultation

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Landlords with rental properties in Hastings are being encouraged to have their say on plans to renew a selective licensing scheme in Hastings. The council is proposing to introduce a scheme requiring landlords to licence all privately rented flats and houses that are occupied by one household (i.e. single persons or couples, or one family) in […]

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Winning Deposit Disputes

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Tenancy Deposits:

Landlords often fail to win tenancy deposit disputes, not because the claim is unjustified, but purely because of the way they have gone about claiming, and usually because they have insufficient evidence to support their claim.

A recent case involving a tenant with a pet cat leaving fleas behind in the property is a prime example of how a deposit claim can be won or lost on the way the claim is presented and the available evidence.

In this case involving a dispute of £180 for the pest controller’s fees, the dispute went to the scheme’s arbitrator who awarded for the landlord.

Despite the tenant’s arguments to the contrary and evidence put forward the landlord claimed that the tenant left behind a flea infestation which had to be irradiated professionally.

Claims for pet related costs are likely to increase because (1) the government is encouraging landlords to take in more “well behaved” pets, and (2) the tenant fees act now restricts the maximum deposit a landlord can take to 5 week’s rent, leaving landlords the only option for their protection, when pets are involved, to charge a higher rent.

According to Property Eye, in this case the landlord claimed the tenant should pay for the cost of treating the flea infestation at the property. But the tenant denied there was any evidence of fleas at the property when they left, and put forward convincing evidence that their cat was flea-treated by their vet and had never had fleas.

The landlord submitted the following evidence to the adjudicator:

• dated and signed check-in and check-out reports
• invoice in the amount claimed from a pest treatment contractor
• a statement of opinion from the contractor
• various emails between landlord and tenant
• a photograph of a flea-bitten ankle.

The tenant submitted submitted:

• Various documents relating to their cat’s vet treatments
• receipts for the purchase of pet flea prevention treatments.

No mention of fleas was made on the check-in report, but the photograph of the flea bitten ankle appeared to have been taken at least a week after the tenancy had ended.

This evidence the adjudicator thought was insufficient, but what swung it for the landlord was the pest controller’s statement that showed a flea infestation was present at the property, two weeks after the tenancy had ended, with no other occupation in between.

Further, the tenancy agreement set out the landlord’s agreement that the tenant could keep a cat at the property, stipulating clearly the tenant’s responsibility for any costs arising for damage or to eradicate any pests caused by or resulting from the presence of the animal in the property – the relevant clause in the agreement stated stated very specifically: “The tenant will be liable to compensate the landlord for any losses due to flea infestation by an animal of the tenant, his family or his visitors”.

Whether disputes like this one go to the deposit scheme’s dispute arbitration or a county court, the principles are very much the same and there are a couple of lessons to be drawn here:

1. Documentary and independent evidence is vital. This, including any photographs, must be dated and confirmed independently.
2. The tenancy agreement must set-out very clearly the obligations and responsibilities of the parties for these eventualities.

These measures are particularly important where pets are involved, but also for other potential damage such as condensation, rent arrears issues etc.

Landlords take deposits to give them financial security should tenants: (1) cause damage in the property, (2) leave the place needing extensive cleaning, (3) leave possessions in the property which need expensive removal, or (3) leave owing rent.

Landlords / Agents should ensure that the letting agreement (contract) provides for all these reasons for retaining a deposit.

Landlords / Agents should also be aware that damage deposits should not exceed 5 weeks’s rent.

Landlords and agents taking a deposit from an assured shorthold tenancy (AST) tenant must protect it in one of the approved schemes within 30 days of taking it. They are also obliged to serve on the tenant a set of statutory information regarding the scheme in question. This information and documentation (s213 notice) is available for download from the relevant scheme’s website.

Landlords and agents are advised to get proof of service of this documentation on their tenant as failure to comply with any of the TDP rules will invalidate any accelerated possession (s21) claim.

Deposit Disputes and that Crucial Evidence

Most tenancies end amicably and the landlord or agent will agree to either refund the full deposit or an agreement between them and the tenant will be reached, such that all or a part of the deposit is retained to cover the issues mentioned above.

However, it is sometimes not possible to reach agreement and therefore the deposit amount in dispute is put into an arbitration process, which is handled by the DTP scheme in question at no cost to the parties involved. In some cases, where complications arise, the dispute will be transferred to the county court for settlement, in which case fees and costs will be involved, and normally the losing side pays these.

Deposit amounts in dispute will be released from the scheme when the parties agree to this. Otherwise the scheme adjudicators will decide on the evidence presented to them who receives the money.

It is crucial therefore that landlords and agents during the course of letting and managing a tenancy build-up sufficient documentary evidence to enable them win a deposit dispute claim should the need arise: a good inventory (preferably done by an independent inventory clerk) with check-in and check-out reports, including photos and tenants signature, is essential.

Further evidence would include estimates and invoices for repairs and renewals, cleaning and removal costs, rent schedules where there are arrears and statements from third parties / contractors as in the case above. It is not possible to claim for work that landlords do themselves (DIY).

Fair Wear and Tear

The contract between a landlord and a residential tenant has an implied term which means dilapidations to the property due to fair wear and tear are acceptable and cannot be claimed against the deposit.

What is fair wear and tear is a matter of subjective judgement to some extent but is informed by the experience of the landlord, agent or inventory clerk, and when in dispute will be decided by the scheme’s adjudicator.

These requirements contrast with commercial tenancies where the lease usually requires the tenant to put back the property into a tenantable state, which usually means complete redecoration, and can even mean major structural repairs as well.

Fair wear and tear has been defined by the House of Lords as resulting from:
“Reasonable use of the premises by the Tenant and the ordinary operation of natural forces”

This statement is not all that helpful when it comes to the task of deciding what is fair wear and tear and what goes beyond that?

Reaching a decision means making an allowance for:

– The original age, quality and condition of any item at the start of the tenancy
– The average useful lifespan to value ratio (depreciation) of the item
– The reasonable expected life time usage of such an item
– The number and type of occupants in the property
– The length of the tenants’ occupancy

It follows therefore from established legal practice that a landlord cannot charge its tenants the full cost of having any part of a property, or any fixture or fitting, returned to its original condition, or even the condition it was in at the start of the tenancy.

When it is not possible to make repairs, any compensation when a new for old replacement is made will therefore involve an allowance for age, quality and fair wear and tear.

Further, a duty is placed on landlords and agents to adopt the most reasonable, practical and appropriate cost-effective approach to achieving a remedy.

Appropriate remedies might include:

Only replacing items where it is so severely and extensively damaged it is now beyond economic repair or, it has become unusable. Here, the most economic repair would be expected.

Small stains on carpets for example may be put down to fair wear and tear, whereas more extensive mark and staining or burns would not.

However, depending on their position it may be possible to cover them with strategically placed rugs and mats and the adjudicator may insist on that.

Otherwise where a replacement carpet is deemed acceptable, any compensation by the tenant would need to take into account: (1) its appropriateness for use in a rental (e.g. colour), (2) quality, its age and expected lifespan. Therefore in these cases the tenant would be asked for a contribution to the cost, new verses old.

Repairs or Cleaning

What is clean to one person is sometimes downright filthy to another.

Cleaning is the most common cause of a deposit disputes between a tenant and a landlord, with nearly a quarter of all dispute cases being attributed to issues of cleanliness.

Therefore any adjudicator’s decision will depend on the evidence submitted, how reasonable is the amount being claimed, and is the claim supported by a contractor’s statement.

Questions the adjudicator may ask:

– Who says it needs cleaning? Is this opinion independent and impartial, e.g. an inventory clerk or agent?
– Did the tenant agree to condition and cleanliness at the start of the tenancy and was it made aware of potential costs of not complying – e.g., a specific clause in the agreement?
– Was the property professionally or DIY domestically cleaned at the start of the tenancy?
– What evidence have you got that shows deterioration, start to end?

Photo & Video Evidence

Photo and video inventories (ideally produced independently) are useful for recording the condition of the property at the start and end of the tenancy and when done properly will provide a clear record of the property prior to its occupation.

You need to make sure all photographs and video evidence is clearly dated and signed and agreed by both parties. This is much easier to achieve when an independent inventory clerk completes the task.

Always make sure the tenant is given a copy at Check-in/Check-out stage, and get a signature to say they agree and understand all the implications after viewing and discussing.

The end result of adjudication will always hinge on the quality of the paper based documentation presented, so good quality photo evidence, signed by both parties will add considerably to the weight of a landlord’s case.

Preparing a Claim

Preparation for a deposit dispute claim starts pre-tenancy. If you have not planned your management process: agreement wording, quality inventories, check-ins and check-outs, communicating to tenants your expectations, interim inspections if necessary etc., then your chances of successfully claiming against a deposit are pretty low indeed.

Putting together a good claim is time consuming and evidence heavy – the adjudicator can make a decision only on the evidence presented in document form. Furthermore, there is no appeal once the adjudicator makes a decision. You cannot challenge an adjudication decision unless it is via a court of law. The more evidence you can produce and the more transparent you are with the whole process the better your chance of success.

As a landlord or agent you need to weigh the costs of putting forward a good claim against the amount of money involved. It the one outweighs the other it is sometimes better to return the deposit to the tenants and “bite the bullet” as cost of regards reinstatement.

This can sometime be an act of good will and will prevent any chance of retaliatory action by the tenant – it would not be the first time a landlord had a brick through the window of its rental property because the tenant felt hard done by losing its deposit.

To help you prepare your claim properly here are two very useful guides: – Recommended Books

Understanding Fair Wear and Tear by the Association of Independent Inventory Clerks (AIIC)

How To Win Deposit Disputes by Tom Derrett

Article By Tom Entwistle, LandlordZONE®

If you have any questions about any of the issues here, post your question to the LandlordZONE® Forums – these are the busiest Rental Property Forums in the UK – you will have an answer in no time at all.

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Winning Deposit Disputes | LandlordZONE.

View Full Article: Winning Deposit Disputes

Is YOUR letting agent following the law on rental deposits?

admin    Uncategorized     agents

Government reveals that six local authorities are looking into multiple breaches of deposit law by letting agents.

Some letting agents around the UK appear to be ignoring
the Tenant Fees Act, with at least 18 possible investigations pending which
could result in prosecution, it has been reported.

Camden, Westminster, Hammersmith and Fulham, Tower
Hamlets, Stoke on Trent and Leicestershire are all looking into issues around
deposits raised by tenants.

Tower Hamlets Council has served three notices of intent
for breaches relating to taking excessive deposits, taking multiple deposits
for the same property and failing to return a deposit within an acceptable time
frame.

However,
ARLA Propertymark points out that the sector is currently in a transition
period.

Chief
executive David Cox tells LandlordZONE: “If the
tenancy was signed and dated on or before the 31^st May 2019,
then the agents can charge a checkout fee up until the 31^st May
2020 as the Tenant Fee Act does not apply to those tenancies. That’s the advice
we have always given out.”

Following the Act’s introduction in June 2019, the maximum
fee allowed is five weeks’ rent for security deposits, and one week’s rent for
holding deposits.

According to the National Trading Standards Estate and Letting Agency Team, these cases could total £45,000 of financial penalties if the agents are found to have breached the legislation.

A spokesman for the National Trading Standards Estate and
Letting Agency Team says they are now seeing some authorities act against
agents who seem to be charging prohibited fees.

He says: “Many
tenants find themselves in vulnerable positions and are concerned about
retaliatory action if they complain about prohibited tenant fees. If you’re a
tenant, we want to make sure you’re absolutely clear: the landlord is not
allowed to serve an eviction notice if they haven’t paid back prohibited tenant
fees.”

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Is YOUR letting agent following the law on rental deposits? | LandlordZONE.

View Full Article: Is YOUR letting agent following the law on rental deposits?

A day in the life of HF Assist

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Last month we reported that Hamilton Fraser, parent company of the Property Redress Scheme (PRS), mydeposits, and Client Money Protect (CMP), had launched a new helpline for letting agents, HF Assist.

In our new ‘Day
in the life of HF Assist’ posts, each week the HF Assist team will highlight
questions from customers and share their answers with us.

In our first Q&A, we discuss the upcoming tenant fee ban
transition deadline, Energy Performance Certificate (EPC) renewals, and tenancy
agreement charges.

Q1: The tenant fee ban
deadline of 31 May 2020 will soon come round. I am working through our
tenancies and making sure we have returned all surplus deposits over the 5 (or
6) week cap.  Is there anything else I
need to be aware of?

Answer:

It’s always good to get ahead of the game.  As well as checking which deposits are over
the cap, be sure to check the history of the tenancy too.

Landlords and letting agents are not obliged to
immediately refund part of a tenancy deposit that is above the cap but which
was paid before 1 June 2019. If a tenant signed a tenancy agreement before 1
June 2019 (and that tenancy is continuing or is a statutory periodic agreement)
then the tenant will be bound by the terms of that contract until it is either
renewed or terminated.

This means that you will be required to refund the deposit
at the end of the tenancy in the usual way and any new tenancy agreed after
this will need to comply with the tenancy deposit cap.

Did you know?

HF Assist Premium subscribers can
download a free template for assured shorthold tenancy agreements. Find out
more here.

HF Assist and mydeposits have
both received calls from landlords and letting agents confused about whether
they need to return
deposits for ongoing tenancies signed before 1 June 2019. We clarify the
situation in our previous post here.
mydeposits’ deposit calculator can help landlords to comply with the Tenant Fees
Act.

Q2: I have a tenancy where the exiting EPC has expired.
Do I need to renew it? The tenant is likely to stay in the property for some
time yet.

Answer:

An
EPC is valid for 10 years after an energy survey is carried out on a property.
It can be used multiple times during this period.

EPCs
have been required by law since 2008 in England and Wales. Since 1 April
2018, all new lets and renewal tenancies must have a minimum energy performance
rating of E on an Energy Performance Certificate. These regulations will come
into effect for all existing tenancies on 1 April 2020.

For
your current tenant:

• There’s no need to
  renew the EPC before 1 April 2020 unless you are going to extend or renew the
  tenancy

• Come 1 April 2020
  you will need to renew the EPC in any event

• If you do start
  looking for new tenants, an EPC needs to be made available to prospective
  tenants as soon as you begin marketing the property

Failure
to provide an EPC when required can result in a £200 fine per dwelling.

Did you know?

The MEES
regulation deadline is soon approaching, giving landlords until the 1 April
2020 to bring their properties to a minimum Energy Performance Certificate
(EPC) rating of grade E.

Find
out more about the new Energy
Performance Certificate: Keeping your property green. And in a previous
LandordZONE post we look at MEES
regulations: What you can do to prepare for the legislation deadline.

Q3:
We have a tenant who is on benefits and as a result their landlord’s insurance
premiums increased by £200 per year.  The
landlord told me last week that he wants me to make the tenant pay him £200 to
continue living at the property. He has told me that this is allowed because
the Tenant Fees Act allows him to change the tenancy agreement (and charge
another £50!).

Answer:

The legislation allows a charge to be made for changing the
tenancy agreement, but only where the reason for making the change is reasonable.
Requiring the tenant to pay an amount of money to continue living at the
property is prohibited under the Act and not, therefore, a reasonable change.

Requesting a prohibited payment is a breach of the Tenant Fees
Act 2019. A breach of the legislation will usually be a civil offence with a
financial penalty of up to £5,000, but if a further breach is committed within
5 years of the imposition of a financial penalty or conviction for a previous
breach this will be a criminal offence. The penalty for the criminal offence,
which is a banning order offence under the Housing and Planning Act 2016, is an
unlimited fine.

Did you know?

HF Assist can offer
expert advice on tenancy agreement processes and what you can and can’t charge
fees for.

The HF Assist helpline provides expert guidance and information from call handlers who have
both legal and lettings experience. The service can be accessed by phone,
email, and live chat during business hours. Upgrading to a HF Assist Premium
subscription provides a 24/7 legal helpline covering all types of legal issues
related to a letting agent’s business plus other useful extras.

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – A day in the life of HF Assist | LandlordZONE.

View Full Article: A day in the life of HF Assist

Court tells landlady to pay tenant compensation after shocking (and illegal) eviction

admin    Uncategorized     agents

Case of landlady who thought she could evict her tenant because he had not signed an AST or passed referencing reveals her shocking ignorance of the law.

A landlady
who chucked her tenant’s belongings into the garden and changed the locks
without giving him proper notice of eviction has had her appeal against a
£7,000 fine rejected.

In November 2019, Lydia Suleaudu, of
Monteagle Court in London, was found guilty of illegally evicting her tenant
from the property in Ringwood Crescent, Bristol (pictured).

He had started renting a room in January 2018
but two months later returned home after working away to find a note on his
bedroom door giving him notice to leave.

The tenant contacted Bristol Council and then
went back to the property to find the locks had been changed and all his
belongings in the front garden. Ms Suleaudu refused to let the tenant back in
and an investigation was launched.

Reference checks

At a magistrates’ court hearing, brought by
the council’s Rogue Landlord Unit, she claimed he was not a tenant as he hadn’t
been given a tenancy agreement and that she was waiting for reference checks to
be completed. As a result, she thought she didn’t need to follow the legal
procedure for eviction.

However, the court heard the notice was
invalid as it didn’t comply with legal eviction procedures and that her tenant
was a residential occupier. She was fined £1,500 and ordered to pay him £490 compensation,
as well as almost £5,000 in prosecution costs and a victim surcharge of £150.

Ms Suleaudu appealed the conviction but lost the case and
now has to pay an additional £1,383 in costs.

Councillor Paul Smith, cabinet member for housing, says:
“It is important for all landlords, even those renting only one or two
properties to understand their responsibilities for renting to tenants. We hope
that other landlords will see this as a clear message that we are here to look
after tenants across the city.”

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – Court tells landlady to pay tenant compensation after shocking (and illegal) eviction | LandlordZONE.

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Call of the Week: Deposits and the tenant fees ban in England

admin    Uncategorized     agents

This week the advice team were able to assist one of our members with a matter relating to their tenancy deposits. They had deposits that were protected in schemes for some of their tenancies that were above 5 weeks’ worth of rent, and wanted to know if and when they should go about refunding the […]

The post Call of the Week: Deposits and the tenant fees ban in England appeared first on RLA Campaigns and News Centre.

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Freeholder charging £36k for a new roof for my BTL Flat!?

admin    Uncategorized     agents

I am extremely ill informed as to what to do next. If someone could point me in the right direction, whether it be advice on here, or which professional I should be taking to about this  – I am happy to pay for a solicitor if that’s what’s needed

The building is a 2 story Edwardian house that was converted into 2 flats in the 70’s I believe.

The post Freeholder charging £36k for a new roof for my BTL Flat!? appeared first on Property118.

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LATEST: Landlords do not have to return deposits for ongoing tenancies signed BEFORE June 1st last year

admin    Uncategorized     agents

The tenant fees ban and its five-week cap on deposits does not come in fully for all tenancies until later this year, landlords should note.

Government authorised tenancy deposit protection
provider mydeposits
has reported a rise in calls from landlords and agents who mistakenly believe
all deposits must comply with the cap by the end of the Tenant Fees Act
transition period on 1 June 2020.

Some of this confusion could be due to an article
from the DPS, which incorrectly states that all three of the Government
authorised tenancy deposit schemes advise that deposits over the cap amount
should be returned to the tenant, including
for tenancies entered into before 1 June 2019.

The deposit cap, which was introduced under the
tenant fee ban last June, set a cap on the amount that can be taken as a
security deposit (five week’s rent for tenancies where the total annual rent
for the property is less than £50,000 per year, six week’s rent where the total
annual rent for the property is between £50,000 and £100,000 per year).

Rental cap

But the cap does not
apply to on-going tenancy agreements signed before 1 June 2019.

If the tenancy agreement was signed before that date
and rolls into a statutory periodic tenancy, then the deposit does not need to
be reduced until it ends or is renewed, and a new tenancy agreement is signed.

At this point the deposit cap will apply and any
excess deposit must be refunded.

This wasn’t clear in the Government guidance on the
transition period, which came out quite late, but has now been clarified in the
Government’s updated Tenant
Fees Act 2019: Guidance for landlords and agents.

Head of Dispute Resolution at mydeposits, Suzy
Hershman, explains: “We’re advising our landlords and agents that if the
deposit was taken before 1 June 2019, and the tenancy is ongoing, the deposit
cap does not apply.”

Hamilton Fraser’s new helpline for letting agents, HF Assist,
has also received several calls from letting agents, confused about whether
they have returned all surplus deposits in advance of the impending transition deadline
of 1 June 2020.

HF Assist Project Consultant, Mike Morgan, comments:
“While it’s encouraging that so many agents are getting organised, we have been
surprised by the calls we are getting on this.

“We’re advising agents that, as well as checking
which deposits are over the cap, they need to make sure they check the history
of the tenancy too. Knowing when the tenancy started and is ending is key.”

In a nutshell

By reducing the cap and refunding a proportion of
the deposit to their tenants unnecessarily, landlords and agents are leaving
themselves with less protection than they would have had against bad tenants.

Pet point

Any landlords and agents who took a pet deposit before the tenant fee ban came into force will have to refund the deposit when a new tenancy agreement is signed, as this is no longer permitted under the tenant fee ban. For more information, read the Government’s guidance on the Tenant Fee Act, or you can access mydeposits guidance here . Please note this advice applies to England only.

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – LATEST: Landlords do not have to return deposits for ongoing tenancies signed BEFORE June 1st last year | LandlordZONE.

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Stamp duty overhaul could be put on ice in Budget

admin    Uncategorized     agents

The property industry will be hoping that housing is a top priority in the upcoming Budget, set to be delivered by new Chancellor Rishi Sunak on March 11. It is the first Budget from the new government elected in December and although it could be a quiet day for the private rented sector

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West Midlands landlord is first in UK to be slapped with Slavery & Trafficking Risk Order

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Kashmir Binning ignored official warnings that his properties were being used by a Polish ‘slave gang’ and must now pay fines totalling £14,000 and adhere to strict rules.

A
rogue landlord who ignored the plight of hundreds of Polish slaves housed in
his three Birmingham properties has had a landmark court order made against
him.

Kashmir
Singh Binning leased the houses to a Polish gang that trafficked up to 400
vulnerable people in houses across the West Midlands, forcing them to work on
farms and rubbish recycling centres.

The
victims endured squalid conditions, slept on dumped mattresses and had no
working toilets, heating, furniture or hot water in some of the properties.

A
judge granted a Slavery & Trafficking Risk Order against Binning – the
first of its kind ever secured under Modern Slavery legislation – which runs
until 2025 and binds him by various conditions: not to accept cash payments
from tenants, to agree to property inspections every three months, and to
provide the local authority with signed tenancy agreements containing details
of all occupants.

Detectives
investigating the trafficking ring had advised Binning, from Kirkham Way in
Tipton, in August 2016 that his properties were being used to house slavery
victims. Despite this, he continued to rent them out.

His
Queen’s Head Road property was largely gutted by a fire in December 2015. A
fire safety report revealed the house had no smoke detectors or fire doors and
was home to several Polish nationals, despite tenancy documents showing it was
leased to one person with no scope for sub-letting. 

Binning
didn’t co-operate with Birmingham Council’s enquiry and also failed to act on
anti-social behaviour concerns at his properties or carry out remedial work
when inspectors found widespread mould and damp.

Detective
Sergeant Mike Wright says: “Binning’s role was pivotal to the group being able
to house victims easily, quickly and at affordable cost. He was friends with
some of the suspects and willing to turn a blind eye.”

Binning was also ordered to pay £14,000 in court
costs.

©1999 – Present | Parkmatic Publications Ltd. All rights reserved | LandlordZONE® – West Midlands landlord is first in UK to be slapped with Slavery & Trafficking Risk Order | LandlordZONE.

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