There are two important changes to regulations in the lettings sector that members and the wider surveying community need to be aware of; the installation and testing of smoke/CO detectors and a landmark change to the service of section 21 notices.
1) Smoke and CO detectors
Part 2, Regulation 4 of The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 comes into effect on 1 October. This is a draft item of legislation which has not yet been made as a UK statutory instrument but a debate in the House of Lords, which started last week, has caused the item to be reconsidered by the House of Commons.
By 1 October, premises occupied under an assured shorthold tenancy (within the meaning of Chapter 2 of Part 1 of the Housing Act 1988) must have:
- A smoke alarm on each storey of the premises on which there is a room used wholly or partly as living accommodation.
- A carbon monoxide alarm in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance.
The regulations are very clear that the detectors are checked by or on behalf of the landlord to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new tenancy. A tenancy renewal is not a new tenancy. A room that is a bathroom or lavatory is considered to be a living room – for the avoidance of risk it would seem sensible to take the view that any room with a solid fuel burning appliance should have a CO detector fitted.
We recommend that the tenant is clearly told to check the detectors on a regular basis during their tenancy; inserting a clause in the tenancy agreement would seem a sensible precaution. However, this does not alter the requirement for the detectors to be checked by or on behalf of the landlord on the day the tenancy begins.
2) Changes to section 21 Notices for England
New regulations require the use of a new s21 prescribed form and the provision of some key documents to tenants, without which the s21 notice cannot be validly served.
This introduces a new prescribed s21 form, with effect from the 1 October, for a notice under section 21 (1) or (4) of the Housing Act 1988 (‘the Act’) informing a tenant that the landlord intends to seek recovery of possession of a property let on an assured shorthold tenancy (‘a section 21 notice’). To date landlords and agents have had to draft their own. As at 14 September, the new form is not yet available but we are informed by DCLG that it will become available on the 1 October. Members will need to act swiftly to integrate the new form into their systems as soon as it is avaiable.
Documents for tenants
Where landlords have not provided required information to the tenant they will not be permitted to use the section 21 eviction procedure. Basically, if a landlord still wishes to use the ‘no-fault’ s21 Notice to terminate a tenancy, the tenant must have been given copies of the following documents:
- an energy performance certificate
- a gas safety certificate
- a copy of the DCLG (Department for Communities and Local Government) booklet entitled ‘How to rent: the checklist for renting in England‘.
RICS recommend the booklet is given to the tenant at the earliest opportunity, in accordance with the PRS Code of Practice.
The Explanatory Memorandum To The Assured Shorthold Tenancy Notices And Prescribed Requirements (England) Regulations 2015 (PDF) implies the ‘How to Rent’ booklet be given in hard copy but the regulations themselves say that where “the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy”, then service of these documents by e-mail is acceptable.
Critically, agents or landlords must be able to prove that they have delivered all this paperwork to tenants, or they will not be able to use the no-fault Section 21 procedure. Carefully thought through procedures with clear paper/evidence trails will be essential and we recommend that tenants are asked to sign for all the documents.
Update: DCLG have provided RICS with a copy of the draft new s21 Notice (below). We are told that the official version to be published will be an editable PDF so developers can grab the text from there. Also that Crown Copyright is waived in these instances.