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Mike Morgan, Hamilton Fraser’s Legal Division Manager and Head of HF Assist, the lettings helpline, provides their top 10 enquiries from agents in 2020.
At this time of year, when we find ourselves in (now remote) offices, working days that begin and end in darkness, we thought we’d reflect on the wide range of enquiries that come across an HF Assist advisor’s desk. Some are funny, most will help the average property professional with their day-to-day job and one even includes whips, chains and nipple tassels!
Here are our top 10 enquiries from 2020, based on the most common, the most interesting, and the most bizarre …
We get many enquiries about whether to use a Section 8 (fault based) or Section 21 (no fault) Notice seeking possession. With all the changes due to COVID-19, its understandable that landlords get confused about which might be best, or what length notice to give. We’ve also got really good at breaking the bad news about Section 21 Notices needing six months!
Much of the advice we give is about myths, misunderstandings, or managing expectations. Every electrical installation in residential premises must be inspected and tested every five years - or sooner if that is what the most recent Electrical Installation Condition Report stated. We see many cases where electricians report that a test must be carried out for every new tenancy. It’s not what the law requires, but a great way for electricians to boost their income. We advise agents to confirm that their contractors will only require testing sooner than five years where there are genuine technical reasons for requiring this.
Housing benefit discrimination was confirmed as unlawful in a landmark court ruling this summer. We still get asked “Can my landlord refuse benefit tenants?” The answer is no - we recommend that landlords consider all prospective tenants based on their individual circumstances and merits. If a decision is made not to accept a tenant, it should be based on affordability, not their status as a benefit recipient.
No surprises that this is a hot topic! There won’t be any significant change for tenants who are already in tenancy agreements, unless they are subject to visa review checks. Agents should continue to conduct right to rent checks on EU, EEA and Swiss citizens in the same way as now, usually by checking and making a copy of an EEA national’s passport or identity card, until 1 January 2021.The arrangement remains the same if the UK leaves the EU with or without a deal, with the Government also confirming landlords will not need to check if new EEA and Swiss tenants arrived before or after the UK left the EU, or if they have status under the EU Settlement Scheme or European temporary leave to remain. There will also be no requirement to retrospectively check the status of EU, EEA or Swiss tenants or their family members who entered into a tenancy agreement before 1 January 2021. Irish citizens will continue to have the right to rent in the UK and prove their right to rent as they do now, for example using their passport.
This can catch agents unawares and prompts some worried calls to the helpline. Remember that letting agents who manage properties which, individually, yield an income of 10,000 Euros per month (or equivalent) or more, must now comply with regulations.
We get lots of questions about data protection – for example, “Can my landlord see the references we obtained for the tenant?” (yes, they are a party to the contract and the references you completed on their behalf), and “Can I pass the tenants’ details to a contractor without getting a data protection complaint?” (yes – make sure it’s covered in your data privacy notice). This week saw a letting agent dealing with a deposit dispute and a tenant whose father insisted on seeing the emails between his son and the agent. If the son had authorised his father to deal with matters on his behalf (and therefore to see communications between him and the agent) this would be no problem. For reasons unexplained (!) the son did not want his father to see the emails in this case, and the agent needed to direct the father’s frustration towards his son …
This is a common topic, with agents worried about guarantors being ‘let off the hook’ and guarantors wanting exactly that! We advised that it would be sensible to include the guarantor so all parties know where they are - but to make sure that there is no liability owed by the tenant when surrendering the tenancy. Agents can sign on behalf of a landlord where they have the landlord's authority to do so (this might for instance be set out in terms and conditions with the landlord) – but should make sure that they have something in writing from the landlord agreeing to the terms of the surrender for their file ….
As if all the changes – and resulting confusion – on notice periods wasn’t enough, we get lots of queries about what happens where a Section 21 Notice is served, and the tenant advises they will be leaving before the notice has expired. It is perfectly in order for tenants to give counter notice - if the tenancy is periodic - but the normal rules apply irrespective of whether the landlord has served notice or not. So, tenants must give one month’s written notice and should be advised that if you cannot rent the property, they will be liable for the rent on the property until their month’s notice period expires.
An agent was due to complete a tenancy of a new build on a Friday, but the building inspector had failed to issue the certificate of completion because a window needs to be replaced. Did this mean the tenancy had to be postponed? The window could be replaced early the following week, with the building inspector due to visit again the same day. Given the short timescales involved, we recommended confirming that the tenancy could carry on provided that room is not used until the Certificate of Completion has been issued (i.e. it has been signed off by the building inspector).
This year’s prize must however go to an agent calling for advice on how long to keep belongings left behind by a tenant at the end of their tenancy. We advised that the tenancy agreement may provide for what happens in this situation; if not, the items can be removed and put into storage, and in theory the costs of storage recovered from the tenant. Our agent asked whether the tenant might be too embarrassed to come back to collect their belongings, which consisted of whips, chains and nipple tassels…
It takes all sorts – but at HF Assist we can advise on all sorts too! To find out more, visit www.hfassist.co.uk
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