Notes for Landlords on Assured Shorthold Tenancies
Notes for Landlords on Assured Shorthold Tenancies (“ASTs”)
May 2016
This document intends to be a short introduction into your obligations as a landlord. This area of law develops quickly and frequently, so it is important to check the status of this document at the time you want advice.
If you would like to receive updated versions of this document or you require any further assistance at all, please do not hesitate to contact solicitor Naomi Newell on 01603 724654 or by email: ncnewell@cozens-hardy.com.
What is an Assured Shorthold Tenancy (AST)?
Is there a minimum term for an AST?
Is there a maximum term for an AST?
Your right to enter the property
Inventory and Schedule of Condition
Right to Rent: Checking tenants’ immigration status
Housing Benefit Letter of Authority
Energy Performance Certificate
House in multiple occupation (HMO)
Section 21 Notices: Termination of the agreement where there is no breach
Section 8 Notices: Termination of the agreement where there is a breach
ASTs explained
What is an Assured Shorthold Tenancy (AST)?
An AST is a type of assured tenancy that allows the landlord to let the property whilst retaining the right to repossess the property at the end of the term. This contrasts with regulated and assured tenancies, where the tenant may be entitled to stay in the property at the end of the term.
A residential tenancy created on or after 28 February 1997 will automatically be an AST unless the landlord has served a notice on the tenant stating that the tenancy will not be an AST. If a notice is served, the tenancy is likely to be an assured tenancy.
The Housing Act 1988 lists the following requirements for an AST:
- The tenant must be an individual.
- The property must be occupied as the tenant's only or principal home.
- The tenancy must not be one that cannot be an assured tenancy (we can provide details of these on request).
Is there a minimum term for an AST?
An AST created on or after 28 February 1997 can be for either of the following:
- For a fixed term specified in the agreement. (There is no minimum fixed term, but any order for possession will not take effect earlier than six months after the beginning of the original tenancy. For more information, see the note below on terminating an AST.)
- A contractual periodic tenancy that will run indefinitely from one rental period to another. (Again, any order for possession will not take effect earlier than six months after the beginning of the original tenancy.)
ASTs that were granted before 28 February 1997 had to be for a minimum fixed term of six months.
Is there a maximum term for an AST?
Legally there is no limit on the length of term that can be granted by an AST. However, in practice ASTs are usually used for short periods and there may be practical issues to consider if a longer term is granted. For example, if the AST contains rent review provisions, the reviewed rent may take the tenancy over the maximum annual rent threshold for an AST (currently £100,000 per years as of April 2015).
Statutory periodic tenancies
If the AST is granted for an initial fixed term, at the end of the fixed term the parties can agree a new tenancy for a further fixed term, or they can let the tenancy run on as a statutory periodic tenancy under the Housing Act 1988.
If a statutory periodic tenancy arises, the period will depend on when the rent is paid. For example, if the rent is paid monthly, the tenancy will be a monthly periodic tenancy.
Tenancies of shared houses
If there will be more than one tenant of the property, the tenancy arrangements can be structured in one of two ways:
All of the tenants are joint tenants of the property on a single AST - This arrangement means that all of the tenants are jointly and severally liable for the obligations imposed on them by the tenancy agreement. If one of the tenants leaves without the consent of the landlord, the remaining tenants will still be liable for the full rent.
Each of the tenants has an individual AST of their own room, and a right to use the shared parts of the property - This arrangement means that tenants are only liable for the rent on their own room. It is important that each AST specifies which room the tenancy relates to, for example, by numbering or naming the rooms in the property. The tenants should not be allowed to move rooms, as this will trigger a new tenancy and the landlord will have to wait six months from the start of the new tenancy before a possession order will take effect. This is also very likely to give rise to the property being considered as a House in Multiple Occupation (see below).
Terms of an AST
Unfair terms
The Unfair Terms in Consumer Contracts Regulations Act 1999 (UTCCR) applies to tenancy agreements.
Where the UTCCR 1999 applies, the courts will not uphold a clause that is deemed to be "unfair" where the terms of the clause in question have not been individually negotiated. A term in a lease will be regarded as not having been individually negotiated where it has been drafted in advance and the tenant has not been able to influence what it says. Even if certain clauses in a lease have been individually negotiated, the UTCCR 1999 can still apply to other clauses if an overall assessment of the lease indicates that it is a pre-formulated standard contract.
This is a complex area and we would suggest you seek advice on your tenancy agreement to ensure it does not contain any unfair terms.
Your right to enter the property
The circumstances in which you can enter the property should be set out in the agreement. You should ensure that the agreement specifies that you can keep a set of keys to the property, but that you must give at least 24 hours' prior notice in writing to the tenant before entering.
Utilities and outgoings
You should set out in the tenancy agreement who is responsible for paying the costs relating to electricity, gas, water, sewerage and telecommunications and Council tax. It is normal to specify that the tenant will be responsible for these. In the case of Council tax it may not be possible for the tenant to pay the local authority directly if the property is considered to be a House in Multiple Occupation (HMO). See further notes regarding HMO properties. In such cases the landlord will pay the local authority but will have the contractual right to recover the money from the tenant.
Inventory and Schedule of Condition
An inventory is a list of all the furniture, fixtures and fittings in the property. The inventory should indicate the state of items on the inventory as well as the decorative order and cleanliness of each room. The agreement requires the tenant to keep the property in the same state of repair as is detailed in the inventory and schedule of condition. The purpose of an inventory is to prove the condition of the property at the start of the tenancy in the event of a dispute at the end. It should therefore be as comprehensive as possible and the condition of the contents should be carefully recorded. Some companies provide inventory services and can draw one up for you.
Legal costs and interest
ASTs usually include a clause obliging the tenants to pay the landlord’s reasonable costs and expenses incurred in court proceedings arising out of the AST. They usually also include a clause entitling the landlord to interest upon any late payments. We recommend that you review the AST you intend to use so that these clauses are included. It will help you if any court proceedings are ultimately necessary to evict the tenant.
At the beginning of an AST
Right to Rent: Checking tenants’ immigration status
New rules prohibit private landlords of residential properties from allowing certain people to occupy those properties. The prohibition is based on the immigration status of the occupiers, and landlords have to check the status of prospective tenants, and other authorised occupiers, to ascertain whether they have the right to occupy the premises before granting a tenancy. Landlords must also make sure that someone’s right to occupy the premises does not lapse, which is an even more onerous obligation. Breaching the prohibition could lead to a civil penalty of up to £3,000.00.
You must see original documents that allow the prospective occupiers to live in the UK and check them with the occupier present. Make and keep copies of the documents and record the date you check them. The list of acceptable documents is available at www.gov.uk in their ‘Housing and local services’ section of the website.
A helpline telephone number 0300 069 9799 is also available for anyone having any queries.
Deposits
It is common for landlords to require a deposit as protection against losses should the tenant not comply with its obligations (such as keeping the property in repair). Deposits are commonly the equivalent of one month's rent, or sometimes two months' rent.
‘Rent up front’ that is taken as security against unpaid rent is a security deposit and must therefore be protected (see below). If you use the ‘rent up front’, for example for the first month’s rent, then a Court may be satisfied that it was taken as genuine ‘rent up front’. There is a raft of case law on this issue and you should therefore take advice if you intend to take ‘rent up front’ in addition to a security deposit.
If the AST is a periodic tenancy, there is an implied term that the tenant will not assign, underlet or part with possession of any part or the whole of the property without the landlord's consent. This provision does not apply to a contractual periodic tenancy if a premium is payable on the grant or renewal of the tenancy. A deposit that is more than one-sixth of the annual rent is considered to be a premium.
So, a tenant who has paid a deposit of more than two months' rent will be able to assign, underlet or part with possession of the property and will not be subject to section 15(1) of the Housing Act 1988. However, this can be covered in the tenancy agreement if necessary. We would recommend you seek advice before seeking more than two months’ rent deposit.
Tenancy deposit schemes
Since 6 April 2007, deposits that are taken in connection with an AST must be protected in a government-approved tenancy deposit scheme.
There are several tenancy deposit schemes available and some prescribe wording that must be included in the AST. If a landlord intends to use a particular tenancy deposit scheme provider, it should check what specific requirements the provider has.
You must protect the tenancy deposit within 30 days of receiving it. You must also provide, again within 30 days, the tenants with ‘prescribed information’ about which scheme is holding the deposit. If you fail to take this action or you take this action after 30 days, you will be in breach of section 213 Housing Act 2004 and subject to a civil penalty of 1-3 times the deposit amount plus return of the deposit. If you think you have breached the deposit protection legislation, you should take advice.
Guarantee
If you are unsure as to whether or not the tenant can pay the rent, you may request a guarantee from a friend or relative of the tenant. This can form a part of the tenancy agreement or can be made as a separate deed. Guarantees will be invalidated by any subsequent material change to the tenancy, for example an increase in rent.
References
You should obtain references for the tenant and evidence of their employment or ability to pay the rent.
Housing Benefit Letter of Authority
If your tenant is claiming housing benefit you will need to get a letter of authority allowing you to speak about your tenant's claim with the benefit office. It is advisable to obtain the letter of authority at the outset of the tenancy, to avoid problems in the future.
Your obligations as landlord
Maintenance
You must keep the property in good order at all times under the Landlord and Tenant Act 1985. You are responsible for:
- The structure and exterior of the property.
- Sinks, baths, toilets and other sanitary fittings, including pipes and drains.
- Heating and hot water installations.
- All gas appliances, pipes, flues and ventilation.
- Electrical wiring.
It is imperative that you keep on top of maintenance works. If a local authority has concerns over any aspect of safety of your property, it can carry out an inspection and insist on repairs being carried out.
If there are outstanding issues in relation to repairs then a landlord may not be able to serve a Section 21 Notice (see below). If a tenant has complained about repairs to a local authority and the local authority has not yet decided whether to issue a Notice of Repair then a Section 21 Notice will usually be invalid. If the local authority has issued a Notice of Repair, then a Section 21 Notice cannot be issued until six months has passed from the date of the Notice of Repair.
The tenancy agreement will also usually require you to keep the appliances (such as the washing machine, cooker and fridge) at the property in repair.
Fire regulations
You should ensure that any furniture that you provide has a manufacturer's label stating that the furniture meets fire resistance requirements.
It is important to supply a smoke alarm at the property on every habitable level of the property. You are obliged to ensure that the fire alarm is operating correctly at the start of each new tenancy. Be sure to let the tenant know if the alarm is connected to the mains supply or if it is battery operated. The tenant is obliged to ensure that the alarm is functioning correctly during the term of the tenancy.
If you are letting an HMO then you will need to have mains powered smoke alarms. There are also other stricter rules relating to HMOs regarding fire escapes etc, which you should investigate and ensure compliance with.
Carbon Monoxide alarms
It is also now law to ensure that there is a carbon monoxide alarm in each habitable room that has a solid fuel burning combustion appliance, for example a coal fire or wood-burning stove. If you fail to comply with this, a local authority can issue you with a £5,000.00 fine. As above, you are obliged to ensure that the alarm functions correctly at the start of each new tenancy.
Gas Safety Certificate
You must have all gas appliances and flues checked by an engineer registered with the Gas Safe Register at least every 12 months. You must provide a copy of the Gas Safety Certificate you receive to the tenant. If you fail to provide a copy of this certificate to the tenant, any Section 21 Notice that you subsequently will be invalid until you rectify the situation.
Energy Performance Certificate
You are now obliged to provide tenants of new tenancies with an Energy Performance Certificate before the start of their tenancy, unless the building is exempt. You need to have an accredited assessor assess your property and provide the Certificate to you. If you fail to provide a copy of this certificate to the tenant, any Section 21 Notice that you subsequently will be invalid until you rectify the situation.
Electrical Safety Certificate
You must ensure that all electrical equipment is safe. Whilst it is not a legal requirement to provide the tenant with a certificate of electrical safety, it is certainly advisable to do so on the beginning of every new tenancy.
‘How To Rent’ guide
You are also now obliged to provide tenants with a ‘How to Rent’ guide. This is available to download from the www.gov.uk website. If you fail to provide a copy of this guide to the tenant, any Section 21 Notice that you subsequently will be invalid until you rectify the situation.
Rent books
If the rent is paid weekly, the landlord must provide the tenant with a rent book. For information of what this must contain to comply with legislation please contact us for further advice.
Address for service
It is a legal requirement to provide the tenant with an address in England or Wales for service of notices. This can be the address of a Letting Agent if you do not reside in England or Wales.
Income tax
You must pay income tax on any profit you make from renting out property. You will need to make sure that you fill in a self-assessment tax return, completing both the main return and the UK property pages.
House in multiple occupation (HMO)
Your property may be an HMO if you let it to at least three tenants who form more than one household and who share toilet, bathroom or kitchen facilities. You will need to contact your Local Authority Housing Officer to see if you need to apply for a licence. Some HMOs do not require a licence but are still considered HMOs for the purposes of Council tax. Generally speaking any property of 3 or more stories with 5 or more unconnected tenants (i.e. not a family) will require a mandatory licence. This very often affects student properties.
Landlord's mortgage
If the property is mortgaged consent of the mortgage company must be obtained. Where a landlord grants an AST in breach of its mortgage agreement and then defaults on the mortgage payments, the lender may commence proceedings to regain possession of the property and evict the tenant in the process.
If the lender seeks a court order for repossession of the property, anyone other than the borrower living in the property will be considered to be an unlawful occupant. The first a tenant is likely to hear will be the N54 "notice of eviction" form sent by the lender 14 days prior to the hearing informing it that possession proceedings against the landlord are taking place. There is very little that the tenant can do to stop the order being granted.
How to end an AST
Section 21 Notices: Termination of the agreement where there is no breach
If you wish to end the tenancy agreement, either at the end of the fixed term or sooner, you must follow the procedure set out in the Housing Act 1988. If the tenant is not in breach of the tenancy then you cannot end the agreement before the end of the fixed term unless you can agree this with the tenant. If you wish to end the agreement at the end of the fixed term then you will need to give the tenant at least two months’ notice of this. Notice must be given in a special form known as a Section 21 Notice. We can advise you on preparing such a notice if required. If the tenancy has rolled over to a statutory periodic tenancy and you wish to terminate the tenancy then you must provide the tenant with at least two months’ notice ending at the end of a rental period. You must also serve such notice in a Section 21 Notice.
Please note that where there are outstanding issues relating to repair or deposits it may not be possible to validly serve a Section 21 Notice until those issues have been rectified, please see notes under these sections.
Section 8 Notices: Termination of the agreement where there is a breach
If you wish to terminate the tenancy agreement because the tenant is in breach then you will need to serve a special notice in accordance with section 8 Housing Act 1988. The main type of breach is non-payment of rent but there can be other breaches (e.g. conducting unlawful activities at the property, damaging the property, etc). Some breaches give rise to a mandatory right of possession, others are discretionary so it depends on the nature of the breach as to whether or not you will be automatically entitled to possession. We can advise you on preparing a Section 8 Notice in relation to a breach should this happen.