Housing and Planning Bill 2015-2016 – An Overview

The Housing and Planning Bill 2015-2016 is currently being discussed in the House of Lords and is well on its way to becoming live legislation.

This new legislation proposes a lot of changes and is in its final planning stages, so some of this article may become inaccurate with further changes to the bill. It is also not in force at the time of writing.

What are the main changes it proposes?

Banning order

This bill proposes a ‘banning order’ on ‘rogue landlords and letting agents’.  The order must last for at least 12 months and will ban a person from letting housing, engaging in letting/agency work or property management work. A banning order can only be made by a local housing authority.

It may grant exceptions to allow existing tenancies which cannot be immediately ended or to allow a business to wind down. The ban may also specify that someone with a banning order may not be a part of a company that undertakes that work.

A banning order may be placed on a person, or on a company and its acting officers. A breach of a banning order is an offence.

Database of Rogue Landlords and Letting Agents

The Secretary of State will establish and operate a database of rogue landlords and property agents – a ‘rogue’ landlord or letting agent is one with a banning order. They must be listed on the system for the whole duration of their banning order. Local authorities will be responsible for maintenance, updating and editing.

Information that will be included on the database will include person’s address and contact details, how long the entry will last, details of property owned/managed, details of any convicted banning orders, details of any banning orders made (whether still in force or not) and details of fines received. If a corporate body is entered, its officers must also be entered.

Rent Repayment Orders

Rent repayments from landlords can be applied for by a tenant or by a local housing authority. Rent repayments to tenants or the local housing authority can be enforced if a landlord has committed one of the following offences:

-          Violence for securing entry

-          Eviction or harassment

-          Non-compliance with an improvement notice

-          Non-compliance with a prohibition order

-          Control/management of an unlicensed HMO

-          Control/management of an unlicensed house

-          Breach of banning order

If a landlord is convicted and gains a banning order, the local housing authority must consider applying for a rent repayment order.

Recovering Abandoned Premises in England

A landlord may give three separate notices in order to recover abandoned premises. The notices must be given in the same fashion as a Section 21 notice would be delivered to the tenant’s premises, to their last known address, etc.

1)      The first notice can be given before the tenant is two months in arrears (for an Assured Shorthold Tenancy paid monthly) and can be given when the landlord believes the property is abandoned. It must give at least a two month window in which the tenant can respond before a landlord recovers possession of the property.

2)      The second notice can be given if the tenant is two months in arrears in paying a monthly rent and has not responded to the first notice. It must also be given at least two weeks after the first notice and no later than four weeks after the first notice. If any rent payment is made, these notices are invalid.

3)      The third and final notice must be given before the five days ending with the date specified in previous warning notices.

Notices are not valid if the tenant contacts the landlord or makes a rent payment.

A tenant may apply to reinstate a tenancy if it is ended in this way if they had a good reason for not responding to the notices.

A landlord may give a tenant notice to bring an assured shorthold tenancy to an end on the day which the notice is given if the above notices have been given correctly.

Below are links to the relevant legislation on the government website.

Housing and Planning Bill (HL Bill 110)

http://www.publications.parliament.uk/pa/bills/lbill/2015-2016/0110/lbill_2015-20160110_en_1.htm

Housing and Planning Bill 2015-2016

http://services.parliament.uk/bills/2015-16/housingandplanning.html

Immigration Act 2014 – Why is it important for landlords?

From the 1^st February 2016, all private landlords in England will have to check a potential tenant’s right to be in and live in the UK. This is from the Immigration Act 2014.

Who needs to make ‘Right to Rent’ checks?

Anyone who is a private landlord, who has a lodger, is sub-letting a property or is an agent appointed on behalf of a landlord will have to make those checks.

How does a landlord/agent make ‘Right to Rent’ checks?

A landlord or agent must check the right of every potential tenant to reside in the UK. Checks must be carried out on every adult tenant (any person over the age of 18) who will live in the property as their only or main home.

Tenants must provide original documents that show they have a right to live in the UK – there is a full list on the government website linked below. All documents must be checked with the tenant present and the landlord/agent must keep copies of the documents and record the date of the check.

Acceptable documents include, but are not limited to:

-          UK passport

-          EEA passport or identity card

-          Permanent residence card or travel document showing indefinite leave to remain

-          Home office immigration status document

-          Certificate of registration or naturalisation as a British citizen

What if the tenant has an outstanding immigration application or appeal?

If this is the case, you can request a Home Office right to rent check.

What are the repercussions for not following the ‘Right to Rent’ checks?

If a landlord is found to be non-compliant, a fine of up to £3,000 can be issued if they have rented a property to someone who is in the UK illegally.

If you have made the checks and kept all relevant copies of documents checked as required, a landlord will have a statutory excuse against a penalty for letting to someone who does not have the right to live in the UK.

Below are links to the relevant legislation on the government website.

Immigration Act 2014

http://www.legislation.gov.uk/ukpga/2014/22/part/3/chapter/1/enacted

Amendments to Section 21 of the Housing Act 1988

The Deregulation Act 2015 brings a degree of clarity to some sections in the Housing Act 1988 as amended in the Housing Act 2004. In particular, the following Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015. One such section is Section 21 of the Housing Act 1988 – Recovery of Possession on Expiry or Termination of Assured Shorthold Tenancy.

What is a Section 21 notice?

A Section 21 notice is the notice a landlord can serve to a tenant or tenants in order to repossess his property. A Section 21 notice cannot be issued more than 2 months prior to the end of the fixed term date of the agreed tenancy.

The only way a tenant can successfully challenge and stop a Section 21 notice possession claim is if there has been a technical error in the application forms or a tenant has not been provided with all the correct prescribed information and protected the tenant’s deposit correctly.

When can a landlord serve a Section 21 notice?

A landlord can issue a Section 21 notice seeking possession of a dwelling if the tenants have a written assured shorthold tenancy or statutory periodic tenancy agreement and their deposit has been protected in a government approved scheme (as outlined in the Deregulation Act 2015). The tenant must also have been given all the prescribed information before the Section 21 is served.

Tenants cannot be evicted until their fixed term tenancy ends. If a Section 21 notice is served prior to the end of the fixed term, the notice must expire on the last day of the rental period of the fixed term.

What has changed?

For all tenancies starting on or after 1^st October 2015, a landlord must use a new prescribed form to serve a Section 21 notice, available from the government website.

A Section 21 notice cannot be served if a tenant’s deposit has not been protected and the tenant has received all the prescribed information (even if their tenancy became periodic prior to the Housing [Tenancy Deposits] Prescribed Information Order coming into force on 6^th April 2007).

If a tenancy started prior to 1^st October 2015, the government are recommending use of the new prescribed Section 21 form. However, the previous Section 21 form is still valid for those tenancies that started before 1^st October 2015.

Below are links to the relevant legislation on the government website.

Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015

http://www.legislation.gov.uk/uksi/2015/1725/schedule/made

Deregulation Act 2015

 http://www.legislation.gov.uk/ukpga/2015/20/introduction/enacted

Housing (Tenancy Deposits) Prescribed Information Order 2007

http://www.legislation.gov.uk/uksi/2007/797/introduction/made

Housing Act 2004

http://www.legislation.gov.uk/ukpga/2004/34/introduction

Housing Act 1988

http://www.legislation.gov.uk/ukpga/1988/50/contents

Smoke and Carbon Monoxide Alarm Regulations 2015

The new Smoke and Carbon Monoxide Alarm Regulations 2015 are coming into force on the 1^st October 2015.

What are the new regulations?

From 1^st October 2015, private sector landlords must have at least one smoke alarm installed on every story of their rented properties.

There must also be a carbon monoxide alarm in any room containing a solid fuel burning appliance (this can include coal fires or wood burning stoves for example). Carbon monoxide alarms should be installed at head height, either on a wall or shelf, approximately one to three meters away from a potential source of carbon monoxide.

Landlords must also check that all alarms are in good working order at the start of each tenancy. After the initial test done by the landlord on the first day of the tenancy, it is the tenant’s responsibility to check their alarms on a regular basis.

When does this legislation apply?

This legislation applies from 1^st October 2015 in any dwelling that is privately rented.

Section 150(3)(a) enables the Secretary of State to provide enforcement of any duty imposed by these regulations. Local authorities can enforce these regulations and can impose repercussions for non-compliant landlords.

Parts 1 to 5 apply under the Energy Act 2011 and do not apply to a House of Multiple Occupation or a house in which a license is required, as regulations for those properties are laid out in the licensing. It also amends the conditions which must be included in a license under Part 2 or 3 of the Housing Act 2004 in respect of smoke and carbon monoxide alarms.

What are the repercussions of non-compliance?

Local authorities will be enforcing this new legislation. After serving a remedial notice to non-compliant landlords who still do not comply, they will be able to impose a fine of up to £5,000.

Below are links to the relevant legislation on the government website.

Smoke and Carbon Monoxide Regulations 2015

http://www.legislation.gov.uk/ukdsi/2015/9780111133439/introduction

Housing Act 2004

http://www.legislation.gov.uk/ukpga/2004/34/introduction

Legislation Changes when Protecting Deposits

The Deregulation Act 2015 comes into force on the 26^th March 2015 and clarifies earlier legislation in regards to protecting tenant’s deposits when moving into a property. The legislation it clarifies is the Housing [Tenancy Deposits] Prescribed Information Order 2007 and the Housing Act 2004.

There are four main changes that the Deregulation Act introduces:

1.

Deposits taken prior to 6^th April 2007 for tenancies that have since become periodic tenancies must now be protected in one of the government approved schemes.

2.

Where tenancies became periodic prior to 6^th April 2007 when the Housing (Tenancy Deposits) Prescribed Information Order came into force, the deposit does not have to be protected. However, a landlord will not be able to serve a Section 21 notice (under the Housing Act 2004) to regain possession of the property unless the deposit is protected and the tenant receives all the prescribed information.

3.

If a fixed term tenancy then rolls onto a periodic tenancy, the deposit does not have to be re-protected if all information is the same as the start of the tenancy (parties, premises, etc).

4.

This act has also clarified that ‘landlord’ within the tenancy deposit prescribed information includes anyone acting on the behalf of the landlord (for example, a letting agency).

Landlords have until 23^rd June 2015 to comply with this new legislation, or face a fine of up to three times the deposit amount.

Below are links to the relevant legislation on the government website.

Deregulation Act 2015

 http://www.legislation.gov.uk/ukpga/2015/20/introduction/enacted

Housing (Tenancy Deposits) Prescribed Information Order 2007

http://www.legislation.gov.uk/uksi/2007/797/introduction/made

Housing Act 2004

http://www.legislation.gov.uk/ukpga/2004/34/introduction

Legionnaires’ Checks – What are a landlord’s responsibilities?

The legal requirements for legionella risk assessments are defined under several acts:

-          The Health and Safety at Work Act 1974

-          The Management of Health and Safety at Work Regulations 1999

-          Control of Substances Hazardous to Health Regulations 2002

However, the Health and Safety Executive (HSE) have released a new document with guidance in regards to the regulations and your responsibilities. The document is the fourth edition of the Approved Code of Practice and Guidance on the relevant legislations.

What does the legislation say?

As outlined in Section 3(2) of the Health and Safety at Work Act 1974, every landlord has a duty to ensure that, as far as is reasonably practicable, that he and other persons who may be affected by their actions are not exposed to risks to their health and safety.

The Control of Substances Hazardous to Health Regulations 2002 provides a framework of actions to identify, assess, and implement any necessary measures to control any risks.

What does the L8 Approved Code of Practice say?

The ACOP has specified that landlords must conduct or have conducted a risk-assessment. There is no recognised ‘legionella certificate’. It is sufficient to assess the risk from exposure to Legionella to ensure the safety of tenants with a simple assessment.

Landlords themselves can conduct the assessment themselves as there is no need to be accredited or trained, but may also equally instruct someone to carry it out on their behalf.

The HSE website advises of all risks and gives examples.

Below are links to the relevant legislation on the government website.

Legionnaires’ Disease: The Control of Legionella Bacteria in Water Systems

http://www.hse.gov.uk/pubns/books/l8.htm

Legionella and Landlords’ Responsibilities

http://www.hse.gov.uk/legionnaires/legionella-landlords-responsibilities.htm

The Health and Safety at Work Act 1974

http://www.legislation.gov.uk/ukpga/1974/37/contents

The Management of Health and Safety at Work Regulations 1999

http://www.legislation.gov.uk/uksi/1999/3242/contents/made

The Control of Substances Hazardous to Health Regulations 2002

http://www.legislation.gov.uk/uksi/2002/2677/contents/made

Legal Aid, Sentencing and Punishment of Offenders Act 2012

As of 1^st Sept 2012, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will be in effect. This is relevant for landlords with empty properties, as it changes squatters’ rights in your properties.

What is changing?

Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 details the new legislations regarding squatters.

It outlines that an offense is now committed when a person who is a trespasser in a residential building and knows or ought to know that they are trespassing, has an intention of living in the property.

This does not apply to anyone who originally had permission from the owner of the property to occupy the premises – for example a tenant who had a lease which has expired and has re-entered the property or has not left the property.

This new legislation also clarifies Section 7 of the Criminal Law Act 1977, allowing uniformed police officers the power to enter and search premises for the purpose of arresting squatters and trespassers. It also allows a uniformed police officer to enter a property when there is suspicion of squatters or trespassers.

With squatting criminalised, the penalties for committing the offence are a £5,000 fine, 6 months in prison, or both.

How do I evict squatters?

The quicker procedure to evict a squatter from your property is to apply for Interim Possession Order.

You must make the application within 28 days of discovering squatters in your property. If the court makes the order, you must serve the notice upon the squatters. You do not have to know the names of the squatters to serve notice on them.

Once you have served the notice, they have 24 hours to leave the premises. If they don’t, the owner of the property can call the police and have them arrested. The notice informs them that they must leave within 24 hours and must not return for 12 months.

The government have also advised that the interim possession order does not give the owner full possession and therefore they must also make an application for a possession of property at the same time.

What if they have damaged my property?

If they have damaged your property and you wish to claim for the cost of the damages, you must apply for a normal possession order for the property and cannot apply for an interim possession order.

Below are links to the relevant legislation on the government website.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

http://www.legislation.gov.uk/ukpga/2012/10/section/144

Criminal Law Act 1977

http://www.legislation.gov.uk/ukpga/1977/45/contents