What is happening to Housing Law in Wales?

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This is the 14th post in my 2017 Legal Update series.

If you are in Wales or own or manage a rented property in Wales you may have noticed from this update series that quite a few of the new regulations don’t apply to you and you may be wondering what is going on.

What is happening is that Welsh housing law is going to be changing dramatically. It is part of a big divergence between the law in England and Wales due to the Welsh Assembly flexing its muscles.

I rather approve of much of what the Welsh Assembly has done, but I have reservations about the wisdom of having such big differences in the law between England & Wales. It is going to be hard on agents, for example, who manage properties in both places.

So, what is happening?

It’s mostly down to two acts:

• The Housing (Wales) Act 2014, and
• The Renting Homes (Wales) Act 2016.

Let’s take a look at them:

The Housing (Wales) Act 2014 – registration and licensing

The main effect of this Act that all landlords and letting agents need to register with Rent Smart Wales.

Further, landlords and letting agents are not allowed to manage property unless they are licensed. This involves undergoing training and (of course) paying a license fee.

If you are a landlord you don’t have to be licensed, but you still need to register and (if you are not licensed) you are not allowed to manage your property (including serving possession notices) – you need to appoint a licensed agent.

If you are a Welsh landlord you should have registered by now as this Act came into force some time ago. If you haven’t – you need to register pronto. Otherwise:

• You can be prosecuted and fined by your Local Authority
• They can apply to the First Tier Tribunal for a ‘rent stopping order’
• They (and your tenants) can also apply for a Rent Repayment order
• You won’t be able to serve a valid section 21 notice

So basically, you won’t be able to charge rent, past rent will have to be paid back, and you won’t be able to evict your tenants.

So, my advice is to make sure you are at least registered.

My understanding is that Rent Smart Wales are more interested in ensuring that landlords are registered than bringing prosecutions – but don’t count on it. The first successful prosecutions have already taken place.

The Renting Homes (Wales) Act 2016 – A New Statutory Code

This act is the reason why Wales is excluded from all the recent regulations that have been introduced in England. Under this act Wales is going to have a completely new statutory code.

The inspiration for this is the Renting Homes project carried out by the Law Commission which was published in 2006 but which was never taken up by Westminster.

We had a Conference in Cardiff in 2015 specifically on these changes and you can see a talk by the former Law Commissioner Martin Partington discussing the changes here.

Although the act has been passed it has not yet come into force and I am not going to discuss its provisions here – other than to say that tenancy agreements will be mandatory and they are looking at having prescribed tenancy agreement forms.

If you are registered with Rent Smart Wales you will be kept up to date no doubt with developments.

We will also be adding to our Wales section on Landlord Law, in due course, when we know what is happening.

In the meantime, the law in Wales at the moment is more or less as it was in England before the Deregulation Act changes.

Summary of differences

Here is just a quick summary of the differences as of now (although some of this will change once the Renting Home (Wales) Act comes into force):

Still the same (at the moment) –

• Tenancy Agreements (but this will change under the new Act)
• Consumer Law (mostly but some regulations just in England)
• Housing Health and Safety Rating System (save that the new enforcement rules discussed in this post are just in England)
• Landlords Repairing Obligations
• Tenancy Deposit Rules
• HMO rules (although different LAs will have different schemes and the new enforcement rules discussed here are just in England)
• Leaseholder Landlord issues
• The Court Procedure Rules

Different

• Right to rent checks – not applicable to Wales (but may be introduced later)
• Deregulation Act changes to section 21 – only apply in England
• The new enforcement measures discussed here – only apply in England
• The Smoke and Carbon Monoxide regulations – only apply in England

(Note that this is not a complete list)

Further information:

The best place to find out more is the Rent Smart Wales website.

Because we love Wales and the Welsh at Landlord Law I am also making available foc for a limited period, a talk from our 2015 Wales Conference on section 21 in Wales >> here. You can thank me by buying one of our other ‘paid for’ courses

Sub-letting fees should not be more than £40

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Sub-Letting Licenses: (SOLITAIRE) LIMITED Appellant and CHERRY LILIAN NORTON and other cases [2012]

Landlords of buy-to-let flats which are leasehold are often asked to pay a fee (sub-letting licence or registration fee) to the freeholder when seeking permission to sub-let their flat, and this fee is usually due each time a new tenancy is signed.

This is a “nice little earner” for the freeholder, but some freeholder landlords and their managing agents abuse this by charging buy-to-let landlord exorbitant fees.

However, a binding ruling by the Upper Chamber (Lands Tribunal) 2012 should be quoted in all correspondence where freeholders or their agents are demanding sub-letting fees of more than £40 plus VAT, which are not specified in the lease

UPPER TRIBUNAL (LANDS CHAMBER)

These fees charged by freeholders are an endless source of resentment between flat owners and freeholders, and in the scheme of things are small beer to the freeholder, but when the charges are excessive, that’s when people get really annoyed.

Now though, flat owners have this ruling on their side. The upper tier Land Tribunal has decreed that following four different cases brought before it, sub-letting fees should be limited to £40 plus VAT.

So, in practice, any flat owner billed with an amount in excess of this should simply offer up that amount and quote the ruling, which should mean that that will be the end of the matter.

These sub-letting fees vary quite a bit, but charges of £100 plus have been common up to this ruling, and indeed since.

The four appeal cases were brought by landlords to the Land Tribunal in February 2012 and they were heard together by George Bartlett, QC, president of the Upper Tribunal.

In all of these cases the leases made clear that the properties could not be rented out “without the prior written consent of the lessor and the management company, such consent not to be unreasonably withheld or delayed”.

The landlords had argued that preparing and registering the sub-letting agreement (licence) involved a considerable amount of work, but the tribunal was having none of this:

Mr Bartlett QC concluded:

“The appellants seek to justify the consent fee in terms that apply to all consents, and they do so by setting out a list of work that, it is claimed, their agents do.  It looks to me to be a list of all the things that could conceivably be done in connection with the grant of consent rather than the things that would need to be done in a typical case or that were in fact done in the cases under consideration”

In all four case the QC concluded “that a fee greater than £40 plus VAT could not be justified, and I determine that this amount is payable.”

Freehold, Shared Freehold or Leasehold?

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£250 million Bitcoin Development!

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Two developers Douglas Barrowman and Baroness Michelle Mone OBE have started a £250 million development in Dubai of two luxury apartment towers and a shopping mall.

The first 150 apartments can be purchased off plan from the developers using the cryptocurrency Bitcoin.

Studio apartments can be purchased from 33 BTC, with additional interior design requests and furniture also available for purchase with Bitcoin.

The development is planned for completion in the summer of 2019 and comprises of 1,133 studio, one and two bedroom apartments. This coincides with Brexit so maybe the developers know something we don’t!

Chairman of the Knox group, Douglas Barrowman, said: “This is a project I have worked very hard on for some time and the Dubai development is the pinnacle of design, architecture and commerciality.

“Bitcoin’s meteoric rise in a few short years means it’s now the world’s leading cryptocurrency. This is exactly why we are the first property development ever to be priced in bitcoin.

“I believe, as it gains mainstream adoption, many will follow our lead on this.”

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Form 17 to split income?

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I have two properties on my sole name and I am a 40% tax payer. However,my wife has no income at all.

I am looking to enter her on the deed by transferring her 50% of the equity on these properties.

She will be hit with a tax bill of £3750 on £125,000 but we are ok with this.

Can I then use Form 17 to split the income 90/10 in her favor ?

Many thanks in advance.

Ridvan

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What Landlords Can’t Do

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A Landlord Guide:

Residential Conveyancing Partner Amanda Sutcliffe of Bray & Bray Solicitors explains a landlord’s responsibilities to their tenants.

In a survey by Homelet, 90% of landlords stated that they were “very happy” (55%) or “quite happy” (35%) with their current tenants, but over 50% also stated that they’ve had problems with at least one tenant in the past.

Landlords’ relationships with tenants can make the difference between a seamless rental experience and a complete nightmare.  I’ve known landlords to sell an investment property after dealing with tenants that have put them off renting to anyone ever again.

The best way to be prepared for both good and bad tenants is to know your rights as a landlord and how to enforce them.  It’s also worthwhile letting your tenants know what rights you have as their landlord, so that they won’t be surprised when you serve them with a notice to evict them, or to inspect or sell the property.

Many things that a landlord cannot do are obvious.  The list below has been compiled to help identify the things that you may not know you can’t do when renting a property to a tenant. The aim is to start the landlord/ tenant relationship off well and avoid any potential disputes in the future.

Things landlords cannot do:

Landlords can’t discriminate

This might seem obvious, but you can’t turn down a tenant on the basis of personal attributes such as age, gender, race etc.  You also can’t charge them more than you would charge other tenants because of any personal attribute e.g. if you think they’re more likely to damage the property based on their age.

Similarly, if someone who is disabled wishes to move into your rental property, you can’t refuse to make reasonable changes to either the tenancy agreement or the property itself, which would allow them to live there comfortably.

Landlords can’t just let themselves into the property

Even if you know that the tenants won’t be at home, you can’t just go into the property without having given the tenants notice and without an agreed time for you to be there.  Similarly, you can’t just arrive when they are home and demand to come inside without giving the tenants any notice.

Landlords can’t make it difficult for a tenant to stay there

If for any reason, you would prefer a tenant to move out after they have been living in the property, you can’t just try to force them to move out.  This includes tactics such as not carrying out repairs that need doing to the property, or making a tenant feel uncomfortable in the property.

Landlords can’t use a security deposit to pay for improvements to the property

This also applies to using a security deposit to pay for any new equipment within the property, or paying for fixes to wear and tear during the tenancy period.  A deposit can only be used at the end of the tenancy and even then, it can only be used to make up for unpaid rent or to pay for repairs caused by damages or cleaning required, due to anything other than reasonable wear and tear to the property and its furnishings.

Security deposits must also be paid back to a tenant within 10 days following agreement of the amount of deposit that will be returned to them.

Landlords can’t raise rent whenever they like

The regularity and notice period for rent reviews should be specified in a tenancy agreement.  If you’ve had a bad month and need money quickly, you can’t just take or demand more money from a tenant.  If you are raising a tenant’s rent, you will need to justify the amount it’s being raised by, in line with market rates and other properties in the area.

Landlords can’t charge excessive late payment fees

Late payment fees can be a great way of encouraging tenants to pay on time every month.  However, if the amount of the late payment fee is excessive, tenants have the right to take you to court to dispute it.  Once this has happened, a judge is likely to side with a tenant, unless your late payment fee reflects true and accurate damages incurred, due to late payments.

Landlords can’t evict a tenant because they’re selling the property

If you’re intending to sell the property that’s being rented out, as long as a tenant has a fixed term tenancy agreement, you can’t just tell them to leave so that you can sell up.  Tenants also have the right to refuse viewings of the property whilst it is for sale, if the viewings are not convenient to them.

Whilst tenants have the right to stay in the property until their tenancy is legally terminated – at the end of their tenancy agreement – landlords do also have the option of coming to a mutually beneficial arrangement to terminate the tenancy agreement early (usually by paying the tenant a severance fee) in order to sell.

Landlords cannot leave longer than 12 months between gas safety checks being carried out at the rented property

This might not seem important, but landlords can actually go to prison for failing to have gas safety checks carried out annually.  Other repercussions of not doing this include fines, invalid insurance and court action from tenants, who can sue for civil damages.

For more information about the legalities surrounding what you can and can’t do as a landlord, speak to a commercial property solicitor who specialises in landlord and tenant matters.  It always pays to check with an expert before acting on a decision you’re unsure about.

See also: Documents needed when letting

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Houses in Multiple Occupation – a legal bombshell in the making

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This is the 13th post in my 2017 Legal Update series.

It’s been my opinion for some time that HMOs are an enforcement bonanza waiting to happen. If I were head of a Local Authority Enforcement Team in any large city I would be rubbing my hands with glee. Bearing in mind the issues discussed in this post.

The trouble is that many HMO landlords have no idea that they are HMO landlords. Viz:

HMO Landlord: I’m not an HMO landlord you know.

LA Officer: Do you rent to three or more tenants who are not family members?

HMO Landlord: Er, yes, I rent out to four friends. But they all signed the same tenancy agreement, we don’t use one of those individual HMO agreements. And they all eat together and live as a family.

LA Officer: Signing the same tenancy agreement does not stop the tenancy being an HMO neither does the fact that your tenants share their meals. If they are not related then they are not treated as being part of the same ‘household’. If there are three or more tenants and two or more households the property is an HMO. See s254 onwards of the Housing Act 2004.

HMO Landlord: Oh. Right. But even if we are technically an HMO – that doesn’t mean anything if we don’t need a license, does it?

LA Officer: Yes, it does. There are the HMO Management Regulations – where’s your notice under section 3? That’s a breach for a start. And who says you don’t need a license? Our borough introduced an additional licensing scheme two years ago.

HMO Landlord: I didn’t know that. How I am supposed to know that?

LA Officer: That’s your problem, mate. It’s your duty to find out.

Etc, etc.

The reason why this sort of thing does not happen more often is because Local Authority Enforcement Depts have been cut to the bone by Austerity and haven’t been able to get out there enforcing. However, with the new income from penalty charges and rent repayment orders, that’s probably going to change.

So, let’s take a step back and consider the law on HMOs. First:

What is an HMO?

There are actually four definitions of HMOs:

1 Where there are three or more tenants in two or more households who share living accommodation.

This is the ‘normal’ HMO type. The one we all think about when we think of HMOs. You can read more about the definition here.

2 Some flat conversions

This is where a building has been converted to flats and the building does not comply with the Building Regulations 1991, and ⅓ or more of the flats are rented on leases of less than 21 years.

The type of HMO is the reason why some freeholders may not give you consent sublet your long lease flat. Read more about this here.

3 The Council Tax HMO definition.

This is set out in Regulation 2 of the Council Tax (Liability for Owners) Regulations 1992. I am not going to look at it in detail but you can find out about it here.

People are often at cross purposes when speaking about Council Tax and HMOs if they don’t realise that both are governed by different definitions.

4 Planning.

Again, I am not going to go into this but you can read more about this here.

Important things to know about HMOs

HMO law and practice is a big topic and I don’t have space to do much here other than hit the highlights. However here are some important points:

Licensing

At the moment, mandatory licensing is only required if an HMO has five or more tenants in two or more households in a property which has three or more storeys.

However, mandatory licensing is not the whole picture. Some Local Authorities have introduced additional licensing schemes where other, smaller HMO properties must be licensed. There are also some areas which have introduced selective licensing where all rented properties need a license whether they are an HMO or not.

If you don’t get a license where a license is required:

• The Local Authority can issue a penalty charge fine of up to £30,000
• You can be prosecuted and fined in the Magistrates Court
• The Local Authority (if tenants are on benefit) or your tenants (if they pay rent themselves) can apply for a Rent Repayment Order
• You cannot serve a valid section 21 notice

So, it’s a good idea to make sure you have a license if you need one.

HMO Management Regulations

This is the other important thing you need to know – even if your HMO doesn’t need a license you still need to comply with these regs. They are basically health and safety regs and you are probably complying with them mostly anyway just by good practice as a landlord.

The one you probably aren’t complying with is the one mentioned in the dialogue above. This says:

3. The manager must ensure that—

(a ) his name, address and any telephone contact number are made available to each household in the HMO; and

(b) such details are clearly displayed in a prominent position in the HMO.

Probably the best way to deal with this is have several A4 pages printed with your details, get them laminated and hang them in the kitchen. Do several copies so you can replace it if it’s lost. It’s important that you do this – failure will be a breach of the regs and potentially a penalty of up to £30,000 (although in practice it would be a lot less than this).

Note that you also need to get an electrical check done every 5 years and get a certificate to prove this – as the Local Authority may ask to see it.

The future

Its best to get your HMO properties up to speed as there are plans afoot to extend the scope of licensing – so that in a couple of years or less all two storey or even all one storey properties may need a license.

It’s not known exactly when this will happen, but it is coming – so watch out.

Further information:

I did a series on HMOs on my Landlord Law Blog in 2014 with David Smith which you will find here.

The 2017 Conference included an update talk on HMOs which is well worth watching. Even if you believe you are not an HMO landlord.

You will find more information about the Conference Course here.  There is a discount voucher for Property118 readers which is pp118cc30 – apply this on the checkout page and it will reduce the payment by 30%.  Note however that the coupon will expire after 16 September.

There is also quite a lot of information on my Landlord Law site plus members can always ask me questions in the members forum.

You can find out more about Landlord Law here

The next post will be on the changes in Wales.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the popular Landlord Law online information service.

To see all the articles in my series please Click Here

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Bridging Rates at All Time Low

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The cost of bridging loans have been reducing over the last 5 years. Rates now start from 0.49% pm and therefore they are no longer seen as a lender of last resort.

Also their use has changed from just the traditional chain breaking bridging loan. Bridging loans are mainly used to provide quick, short-term capital to fund property transactions.

A recent survey shows that the use of bridging loans are changing.

• 27% were used for refurbishments. This is where the client wants to purchase an uninhabitable property. Lenders will not usually lend on a property that doesn’t have a kitchen, bathroom, central heating etc. Investors use a short term loan and refurbish/renovate the property before selling it or putting it onto a buy-to-let mortgage at the enhanced value

• 25% were for mortgage delays and chain breaking. A bridging loan enables a seller of one property to purchase another property before the sale of their existing property. Also where a purchaser is in danger of losing the house of their dreams because of a delay with their mortgage provider.

• 15% were for other purposes. These include where a property needs a lease extension. Where a property has a short lease, it is unlikely that a client would be able to obtain a mortgage. A bridging loan could be used to extend the lease, before arranging a term mortgage. Others include where an investor needs to secure a property quickly to obtain an advantageous price, or developer needs to purchase a property or land prior to getting planning permission.

• 13% were re-bridges. These occur when there is currently a bridging loan in place that is about to expire or move on to punitive rates of interest.

• 11% were for business purposes. There are a variety of business uses for bridging finance. These range from having to pay an urgent tax bill to expanding the business.

• 9% were for auction finance. Here completion needs to take place within 28 days and traditional financing is not normally available within this time frame.

The above demonstrates the wide and varied use of bridging. Just as wide and varied are the number of bridging lenders out in the market and the criteria that they work to as well as the costs. Some of the factors that determine this are:

• Regulated or non-regulated transaction. Is it a personal or business transaction?

• Closed bridge (guaranteed exit route) or open bridge (less firm exit)

• Loan to Value

• Type, condition and location of the property

• Rolled up interest. This is where the interest doesn’t have to be paid each month and is added to the loan

• Client’s credit history

• Duration of the loan

With all of the variables and associated costs it is always prudent to seek the advice of a FCA regulated broker, before embarking on any type of bridging loan.

If you need assistance with any type of property or commercial finance please do not hesitate to ask for my help using the form below.

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Free Webinar on commercial property

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A CPD accredited briefing for property lawyers, commercial agents and local authorities on regaining possession of commercial property.

Wednesday 27^th September 12:30-1:30

The Sheriffs Office is a leader in the field of regaining possession of commercial property, including the removal of squatters and trespassers. We provide nationwide coverage and have worked on many high-profile cases. We have specialist teams of Enforcement Agents who are highly skilled and trained in specialist methods of entry.

All you will need to do on the day to take part is to log on to the online webinar via the link (this will be email to you). Don’t worry if you can’t make the date, if you sign up you will receive a recording of the webinar and presentation slides the next day so that you may watch it at you leisure.

 Click here to sign up: https://attendee.gotowebinar.com/register/8633207356712617475

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Mayor of Newham claims half the landlords there evade tax

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Last month a couple of unsubstantiated statistics were published in the papers.  They both came from the Labour mayor of Newham, Sir Robin Wales, who has an axe to grind.  He is fighting the government over the continuance of the mandatory universal licensing scheme that was introduced in 2013 and will end in December.  He wants to extend it – at the cost to landlords of £400 a property, instead of the current £150.

Sir Robin joined the Labour Party when he was 15.  He was knighted in the 2000 Birthday Honours for services to local government.

In a letter to Philip Hammond, Sir Robin wrote: “It is our understanding that, to date, up to 13,000 Newham landlords are of interest to HMRC, where there are discrepancies between declared income and our records, with potentially significant financial implication for the exchequer.”

Newham Recorder Click Here

This begs the question – what is his figure based on?  The only organisation that could know how many landlords may have failed to declare rental profits is HMRC.  And HMRC rejected the figure.  “HMRC said it did not recognise the figure of 13,000 landlords put to it by the council.” according to the Newham Recorder, and the Independent.

Independent Click Here

So where did his “understanding” of up to 13,000 come from?  The local paper gives the exact number of landlords: 26,254.  Was it based on anything more than “I bet half of those landlords are not paying tax you know”?

Note that he wrote “up to 13,000”.  So that if even one landlord was not declaring all of his or her rental profit, then Sir Robin’s claim would be correct.

If he had an accurate figure he would have used it.  The fact that he did not casts doubt on the “up to 13,000”.

The story was also published by the Guardian.  In the latter, Patrick Collinson even claimed that the miscreants had been identified.  His article started with “Up to 13,000 landlords in just one London borough have been identified as failing to declare their rental income, prompting estimates that unpaid tax in the capital is costing the public purse nearly £200m.”

The Guardian Click Here

He did not acknowledge that HMRC did not recognise the figure.  He merely wrote that “HMRC would not confirm the figure”.  This could be taken to mean that the figure was right but that HMRC refused to admit it, rather than the figure being wrong and rejected by HMRC.

He continued “The council estimated that unpaid tax by landlords is costing the public purse nearly £200m in London – and far more nationally.”

How did he get from 13,000 landlords in Newham to nearly £200 million across London?  Again, the local paper comes to our aid.  It said “The letter also highlighted data carried out by Institute for Public Policy Research (IPPR) in 2014 which estimates that the amount of undeclared tax in London totals more than £183 million.”

The source of the £183 million is described in an article from March 2014 by InsideHousing, with the title “Rogue landlords in London avoiding £183m in tax”

It said “Following a pioneering mandatory register of private landlords, Newham Council has built up a database of 20,000 landlords in the borough.

Using these figures it estimates landlords are avoiding £183.1 million in tax across the capital. The data, verified by the Institute for Public Policy Research, suggests £508 million in rent is paid to landlords cash-in-hand in London.”

Inside Housing Click Here

You have to admire the accuracy of the made-up figure for undeclared rent to the last £8 million, and the accuracy of the tax on this rent to one decimal place.  It makes the figures seem genuine, rather than invented.  Unfortunately there is no indication of where the £508 million for rent paid in cash was plucked from.

But the tax at 36% of rents seems high.  If the assumed tax rate had been 40%, that would only have allowed £50 million of costs (10%), including mortgage interest.  If the tax rate was 45%, the allowable costs would have been only about £100 million (20%).

But the IPPR was presumably happy with it, showing comradely solidarity with the mayor.  It is a Labour Party think tank.

“Setting up IPPR was a conscious attempt by Labour leaders and Labour sympathisers to promote their party’s modernisation beyond what was discussed by party-internal policy-making bodies e.g. during the Policy Review process.”

Sourcewatch Click Here

The Institute for Public Policy Research has been criticised by the Charity Commission, which said it “had “exposed itself to the perception that it supported the development of Labour Party policy”.

Telegraph Click Herel

What does it matter if the figures of 13,000 and £200 million are wrong if it means that Newham can extend mandatory licensing – at more than double the price?

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Stamp Duty for Armed Forces serving overseas

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I currently own a rental property in the NE that I’m looking to sell. I am a serving member of the UK armed forces and posted overseas.

The new property that I’m looking to buy would, in all likelihood, be rented (initially) until I’m posted back to the UK.

What stamp duty would the HMRC expect me to pay ?

Although I intend to live in the property (at some point when my military career allows) I will be selling one buy-to-let and buying another.

Can I convince them that I should pay standard rate ?

Many thanks

Jack

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