Section 21 Query - Landlord Not Up To Date with Legislation?

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    Section 21 Query - Landlord Not Up To Date with Legislation?

    Hello,

    A landlord I am working with has a HMO and would like to issue section 21 to all tenants (many of which are long term) as they would like to fully refurbish the property. However they are an elderly couple and haven't kept up with all of the compliance and regulations surrounding lettings. As such some tenants haven't had deposits protected, gas safety certificates / EPC's issued or the "How to rent" guides.

    I wondered the best way to move forward to ensure that everything could be made up to date and then issue the section 21's so that tenants couldn't state they were invalid etc. to make the process as smooth as possible.

    Any assistance would be greatly appreciated.

    Many thanks
    Darren

    #2
    Deposit protection: return the deposit.

    How to Rent (pre-Oct 2015 tenancy): not an issue.

    How to Rent (post-Oct 2015 tenancy): can be served late.

    EPC (pre-Oct 2015 tenancy): not an issue*.

    EPC (post-Oct 2015 tenancy): can be served late.

    GSC (pre-Oct 2015 tenancy): not an issue*.

    GSC (post-Oct 2015 tenancy): If a valid GSC was given before tenant occupied, then can be served late*. If a valid GSC was not given before tenant occupied, nothing you can do**!

    HMO: apply for a license if required and not held.

    * Solely from a s21 point of view
    ** Probably, get back to you when the CoA delivers its judgment on a recently heard appeal.
    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

    I do not answer questions through private messages which should be posted publicly on the forum.

    Comment


      #3
      Thanks for your quick reply. So for the majority if tenancy was pre Oct 2015 they don’t apply from a section 21 point of view?

      Would you suggest however it may be best to issue these documents to tenants so as to bring them up to date with current legislation?

      In terms of deposit do you suggest returning deposits before issuing the section 21 in the case they aren’t protected? Or could the landlords now protect them and then wait a week or two before the section 21?

      You mentioned from the section 21 point of view? Are there other ways that when issuing the tenants could then appeal or anything else I need to ensure is in place so that the notice isn’t invalid?

      Comment


        #4
        Also be aware that many people leave by/on s21 expiry, even if invalid: Not having taken advice and/or deciding not to fight.

        But as an agent (? are you ?) you'll know..

        see also
        https://nearlylegal.co.uk/section-21-flowchart/
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          If tenants knew their rights then may claim 3× times of deposit value

          Comment


            #6
            Originally posted by Policy reader View Post
            If tenants knew their rights then may claim 3× times of deposit value
            Even if they don't know their rights they may become away that they can claim up to 3xdeposit..
            I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

            Comment


              #7
              Originally posted by darren_b View Post
              In terms of deposit do you suggest returning deposits before issuing the section 21 in the case they aren’t protected? Or could the landlords now protect them and then wait a week or two before the section 21??
              No it has to be returned.

              Google nearly legal section 21 flowchart
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #8
                jpkeates,

                Thank you, so return deposits prior to any mention of section 21. Appreciate that the landlords could then be taken to court to claim up to 3 times the deposit due to it not being protected but it wouldn’t affect the S21 or cause it to be invalid as deposits are returned is that right?

                Comment


                  #9
                  theartfullodger,

                  Thank you, the flowchart is very helpful!

                  Comment


                    #10
                    KTC,

                    Thank you for your response. So really the GSC is the sticky issue really. If in the event a GSC was not carried out before the tenancy started originally then we cannot get around this? However if the gas safety was carried out but not issued to the tenants then we can just provide them a copy of the certificate being issuing the S21?

                    What would you suggest to do if the GSC was never carried out (I need to double check this for different tenants at all HMO tenants). ?

                    Comment


                      #11
                      Originally posted by darren_b View Post
                      So really the GSC is the sticky issue really. If in the event a GSC was not carried out before the tenancy started originally then we cannot get around this?
                      There's a test case in progress, but the current position is that you can't get around that, so section 21 is not available as an option.
                      However if the gas safety was carried out but not issued to the tenants then we can just provide them a copy of the certificate being issuing the S21?
                      Yes. There is some debate about how the s21 has to be made available to tenants in an HMO, because normally the gas equipment is in the common areas, which are not the tenants and there is some doubt about how the (usually) single document can be given to multiple people.

                      What would you suggest to do if the GSC was never carried out (I need to double check this for different tenants at all HMO tenants). ?
                      Don't get involved.

                      Is the HMO licensed?
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        jpkeates,

                        Thank you for your reply. Two of the properties are licensed HMOs yes the other two are smaller only 4 beds and not licensed

                        Comment


                          #13
                          Originally posted by darren_b View Post
                          However if the gas safety was carried out but not issued to the tenants then we can just provide them a copy of the certificate being issuing the S21??
                          If a gas safety test is required (because there is gas), then a valid certificate (i.e. from a test within the last 12 months) needed to have been given to the tenant before they occupied, not just that a test was carried out. After that, the new GSC need to be given to the tenant following the annual safety test. If that haven't been done but pre-tenancy was given, then the LL can give the most recent valid GSC late (or have a test then give the GSC) before valid s21. There's some arguments about having to give a GSC late, then a new test and then that new certificate on time but complicated and not settled or binding so we'll ignore that.
                          I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                          I do not answer questions through private messages which should be posted publicly on the forum.

                          Comment


                            #14
                            Originally posted by jpkeates View Post
                            because normally the gas equipment is in the common areas, which are not the tenants and there is some doubt about how the (usually) single document can be given to multiple people.
                            I'm not sure what the arguments are? The regulations are fairly specific in the requirements. (I choose the word specific rather than clear to normal people.)

                            A gas safety check is required if there are (amongst others) any gas appliance or installation pipework installed in any relevant premises. '"Relevant premises" means ... any part of premises occupied, whether exclusively or not, for residential purposes'. A common area in an HMO are still premises occupied though non-exclusively.

                            A check would also be required if 'any gas appliance or installation pipework which, directy or indirectly, serves the relevant premises ...'. Only that in this case, the LL can display the GSC in a prominent position in the premises along with a statement that the tenant can request a copy.

                            If you mean how the one piece of paper given to multiple people, err, photocopy?
                            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                            I do not answer questions through private messages which should be posted publicly on the forum.

                            Comment


                              #15
                              Originally posted by darren_b View Post
                              if tenancy was pre Oct 2015 they don’t apply
                              Yes, but that is the last non-SPT agreed with the tenant, not the first.

                              Comment

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