The commencement of any assured shorthold tenancy (AST) is the most important time for landlords.
We have come across a number of horror stories recently in the legal press and whilst acting on behalf of our landlord clients. These have ranged from the poor drafting of ASTs to invalid notices determining tenancies being served and deposit protection rules not being followed.
All of these issues stem from managing agents and landlords not taking sufficient time and care, prior to the commencement of an AST, to ensure that all of the landlord’s obligations have been complied with. Here are some frightening examples of recent cases:
The Man Who Knew Too Much
A private landlord, without taking legal advice, amended the rent payment clause in their ASTs so that rent was payable in the following instalments: the first six months up front and thereafter in two monthly instalments. When the tenant did not pay the first instalment the landlord immediately served a section 8 notice to evict them. Then, on expiry of the notice, issued possession proceedings. The tenant instructed solicitors to defend the case at which point we were instructed by the landlord. Unfortunately, we had to advise our client that the section 8 notice was invalid as they had not waited sufficient time before serving the same. The proceedings had to be discontinued and the tenant’s legal costs paid.
No way home
Landlords must heed the decision of an important case from earlier this year (Caridon Property Ltd v Monty Shooltz 2018). Here, the landlord had not served a tenant with the gas safety certificate for the property, prior to the commencement of the tenancy. The landlord subsequently served a section 21 notice to determine the tenancy and take back possession. The tenant was able to successfully challenge the notice and obtained a determination that it was invalid because the gas safety certificate had not been given prior to the commencement of the tenancy. Furthermore, it was decided that the breach meant that the landlord could never use a section 21 notice, for the duration of the tenancy, to evict the tenant.
One of the most common problems we still encounter is landlords forgetting to comply with the tenancy deposit rules. The mistakes range from not providing the prescribed information and the requisite scheme leaflet within 30 days, to failing to re-protect the deposit and re-serve the prescribed information and leaflet when a change to the tenancy occurs. The penalty for non-compliance remains severe; tenants are entitled to claim up to three times the value of the deposit from the landlord.
A landlord client of a block of flats had agreed to implement a hawking regime to combat the problems faced by their tenants from pigeons and other birds causing damage and nuisance. The hawking regime employed was meant to occur every two weeks. At best, the routine occurred just once a month. This led to a seagull nesting on one of the tenant’s balconies. As seagulls are a protected species the landlord could not simply get rid of them.The tenant was therefore able to bring a claim for loss of amenity because the landlord had not followed the hawking regime to combat this nuisance.