Airline immigration case just the ticket for landlords

While the worlds of lettings and budget air travel might appear disparate, landlords might want to show thanks to Ryanair after it successfully challenged a recent legal claim over an immigration dispute.

When the Home Office imposed a penalty on the budget airline after it was found that two Albanians had illegally entered the UK on a flight from Spain using forged Greek passports, Ryanair went to the Central London County Court to state a challenge.

Spanish officials had failed to notice the forgeries, but UK Border Force officers were more vigilant. As a result, the Home Office penalised Ryanair £2,000 for each Albanian, but the airline contested the charge.

Parallels are clearly drawn for landlords under the Right to Rent scheme, which stipulates that documentation has to be checked to ensure that potential tenants and other occupiers of a property aged 18 or over have a legal right to be here.

The Code of Practice that accompanied the implementation of the Immigration Act 2014, set out in the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014, says that landlords “will not be penalised, if, having taken all reasonable steps to check a document’s validity, they are fooled by a good forgery which appears to be genuine.”

The difficulty comes in knowing what a good forgery is, but the Ryanair case seems to give at least a clue as to a definition.

Two immigration officers gave statements that missing security elements in the passports used by the Albanians were in their view “reasonably apparent” to a member of airline staff and that they should have been spotted. However, other immigration officers in similar cases had found that the forgeries were not “reasonably apparent”. The Court took the view that missing security elements that are relatively hard to find, even for trained professionals, would not be reasonably apparent to busy airline staff, even though they have an annual refresher course.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

A Clearer View - September edition

Since the government implemented its Stamp Duty Land Tax ('SDLT') reforms in April of this year, applying an additional 3% levy to buy-to-let ('BTL') properties, many landlords are scrutinising their portfolios to ensure that their investments are maximised.

Navigating SDLT reforms, however, is a sensitive and complex manoeuvre, and often calls for expert advice. In this edition of Clearer View, we have invited the Tax Team at Price Bailey Property to share key advice for buy-to-let investors.

Company ownership for buy to let properties
Many of the country’s landlords are starting to question the fairness of the UK tax system following the introduction of tax changes in the buy-to-let market in April.

Despite the financial implications of the reforms, many landlords have not considered how they hold their interests in property and what this means for their investment. While owning property personally is simple and requires minimum fuss, for many individuals, it isn’t very tax efficient, and we are anticipating that post-tax returns on property investments could be lower under the new legislation.

Potential tax advantages
Income Tax on rental profits can be anything up to 45%, which seems a significant imbalance given that companies currently pay Corporation Tax at 20%. This already favourable rate will reduce progressively to 17% over the next four years and may even drop as low as 15% - a figure previously quoted by George Osbourne, the ex-Chancellor of the Exchequer, following the result of the EU referendum.  Therefore, if a landlord does not require rental profits on which to live, or if they are not being used to repay loan capital, establishing a private company to manage lettings portfolio starts to look attractive.

Furthermore, from 2017, loan interest will be restricted to Income Tax, but not Corporation Tax, further enhancing the appeal of the company model.

When residential properties are sold, individuals pay Capital Gains Tax (‘CGT’) of up to 28%, whereas on residential property gains, other than in limited circumstances, companies pay Corporation Tax at the lower rates mentioned above. In addition, companies are often taxed on a lower gain because they can claim an inflation allowance (known as indexation).

Shareholding and future planning
Corporate ownership allows a wide range of investors to participate as shareholders, rather than having direct interest in the properties. This also benefits Inheritance Tax planning, as assets can be passed to the next generation without having to transfer the property. For example, landlords can introduce their adult children as minority shareholders, or with generous grandparents, grandchildren can become shareholders, and dividends can be paid to them to fund school fees or other expenses, rather than grandparents paying out of their taxed revenue. Dividends can also be paid to the wider family group, which is likely to improve overall tax efficiency.

In summary, prospective and existing landlords should consider their ownership structure before making any further property purchases.

For those BTL landlords who own portfolios personally, it may be possible to move them into a new company structure; however, inadequate or poor advice could increase the risks of triggering high CGT and Stamp Duty Land Tax liabilities with no cash to settle them.

Price Bailey are a firm of chartered accountants and tax advisors who are experienced in this area, having successfully assisted clients reorganise BTL landlord property portfolios without incurring ‘dry’ CGT and SDLT charges.

Price Bailey are happy to give clients a free initial portfolio review to assess whether benefits can be had from the recent tax changes, as discussed above. Contact details can be found below.

Price Bailey Property Tax Team
Jay Sanghrajka
Partner, Head of Property
T: +44(0) 207 7382 7431
Jay.Sanghrajka@pricebailey.co.uk

Chris Hammond
Senior Tax Consulting Manager
T: +44(0) 1223 507 632
Chris.Hammond@pricebailey.co.uk

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Positive new measures in the Housing and Planning Act 2016

The Housing and Planning Act 2016 has now passed into law, and while it needs secondary legislation to implement its various measures, it is good to be aware of what it is likely to bring. Whilst it is not due to come into force until April next year, other measures may be added in the interim to enable legislation, so it is advisable to be aware of changes as they develop.

Below is a summary of some of the Act’s measures and my thoughts on how these will impact the industry.

Electrical safety standards

Landlords are likely to find they will have to adopt positive measures to ensure electrical safety during a tenancy, possibly by way of annual checks. New safety standards are likely to apply not only to the electrical system in the property but also to electrical fixtures and appliances supplied by the landlord.

It is expected that to satisfy the requirement, an electrician will be required to make an inspection, and while it is uncertain as to whether or not a copy of the certificate will need to be supplied to the tenant, it would seem to be good practice to do so, especially with the changes to Section 21 rules on notices for possession and the possible ability to avoid them by the tenant requesting repairs.

The law is likely to be backed up by penalties, possibly financial, and as these are safety issues local authorities could be given the power, with the tenant’s consent, to enter the premises and rectify any failures.

I am fully in favour of improvements to the electrical safety standards guidelines, as the current legislation requires a landlord to ensure the electrics are safe, but there are no physical guidelines to show how to go about this and what can be used as evidence to demonstrate this has been done.

Banning orders

Both landlords and letting agents could be made subject to banning orders under Part 2 of the Act, made by the First Tier Tribunal (FTT) on the application by a local authority. Those subject to an order would not be able to undertake letting agency or property management work or let houses, although it is unclear at present exactly what transgressions would lead to an order.

Orders will endure for at least 12 months and, if the ban is breached, there are some serious penalties enshrined in the new law. Summary conviction could bring a ban of no more than 51 weeks and / or a fine not exceeding £30,000 with a banned person not permitted to hold an HMO licence. This would clearly have serious implications for both our clients and ourselves and should at all costs be avoided.

Rent repayment

The FTT will also have the power to make rent repayment orders where a landlord has received rent from a tenant or local authority through universal credit.

It is likely the FTT will make an order if a landlord has:
1.    Failed to comply with an improvement or prohibition order or
2.    Evicted or harassed a tenant or
3.    Has control or management of an unlicensed HMO or house or
4.    Has breached a banning order.

Either tenants or local authorities can apply for an order but the making of an order can only be made if it is beyond reasonable doubt that the landlord has committed the offence. The amount to be repaid is limited and cannot exceed the rent paid by the tenant over a 12-month period during which the offence was being committed by the landlord.

Whilst this could be positive news for tenants in properties that are not being properly maintained by their landlords, I am concerned that it could be abused by some tenants who could attempt to claim back rental payments when a landlord has in fact been fair and maintained their property well.  I imagine that as a result of this new order written correspondence between landlords, tenants and agents and detailed records will become even more important for dealing with potential claims in the future.

Database of rogue landlords and property agents

The Act will establish a database of ‘rogue’ landlords and property agents, which will be operated by the Secretary of State but updated by local authorities.

The information held will include:
(a)        the person’s address or other contact details;
(b)        the period for which the entry is to be maintained;
(c)        details of properties owned, let or managed by the person;
(d)        details of any banning order offences of which the person has been convicted;
(e)        details of any banning orders made against the person, whether or not still in force;
(f)        details of financial penalties that the person has received.

This information will be disclosed on application in redacted form and local authorities will have access to the database. This is an important move for the industry in which ‘rogue’ landlords and agents can tarnish the reputation and perception of the vast majority who operate reputably. This will certainly help to crack down on repeat offenders and hopefully weed out such individuals.

Overall, the new measures proposed in the Act are welcome changes for the industry that should improve efficiency and transparency in the residential lettings process. Whilst, as with any change to legislation, there will be new risks and potential loop holes created, these measures look to further protect tenants and landlords alike and also provide further support for agents.

The full details of the Housing and Planning Act can be viewed here.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Don’t fall foul of new residential tenancy rules

Don’t fall foul of new residential tenancy rules is the message coming loud and clear from the Central Association of Agricultural Valuers’ spokesperson, Kate Russell.

With rental income from cottages and converted farm buildings becoming an increasingly important financial lifeline for many farmers, they need to take heed of these latest developments.

In the main, the new rules are being put in place to protect tenants from unfair treatment but landlords who may have behaved perfectly reasonably can be caught out by the new legislation.

Probably the most important new rule in 2015 was the introduction of prescribed legal requirements for Section 21 notices, which have to be served to terminate an Assured Shorthold Tenancy.

For tenancies beginning after October 1, 2015, landlords may not serve a Section 21 notice to terminate a tenancy unless the tenant has been provided with:

•    A free and valid Energy Performance Certificate (EPC)
•    A copy of the gas safety certificate for the property where appropriate and
•    A copy of the government’s guidance note: How to Rent: A Checklist for Renting in England

Other new rules include Right to Rent checks.  Since February 1, 2016, landlords must check that their tenants (and any adult living with them) have the legal right to rent in the UK. Penalties for failure to conduct such checks can result in fines of up to £3,000.

In order to comply, landlords or their agent must check original documents such as a passport or birth certificate in the presence of the document holder and then keep copies of them for a year after the tenancy ends.

In addition, all landlords must ensure there is a smoke alarm on each storey and a carbon monoxide alarm in every room with a solid fuel burning appliance, including wood burning stoves, open fires and Agas.  Failure to comply with these rules, which cover both residential and agricultural tenancies could ultimately lead to a fine of £5,000.

Then there are restrictions on landlords serving termination notices in response to tenants who may have complained about the condition of the property and the Landlord has failed to respond adequately.

And from April 1, 2016, a landlord cannot unreasonably refuse a tenant’s demand for energy efficiency improvements if they can be carried out without cost to the landlord.  While from April 1, 2018, a domestic private rented property cannot be let on a new tenancy if it has an EPC of F or G. This will also apply to existing tenancies from April 1, 2020.

However, where a property does not comply, landlords who have done everything they can to improve its energy efficiency (at no cost to themselves) can apply for a five-year exemption every five years.

So the message is that regulations concerning renting out properties are becoming more and more stringent and landlords either need to get clued up on the new legislation themselves or employ professional help to ensure their rental properties do not become an unexpected financial burden.

James Stephen MRICS FAAV
Partner
Rural Practice Chartered Surveyor, Wells
T: 01749 683381
E: james.stephen@carterjonas.co.uk

Good landlords risk falling foul of catch-all law

Legislation now widely known as the law that stopped retaliatory evictions was intended to make bad landlords conform.

 

But it risks becoming something of a catch-all for otherwise good landlords who inadvertently may have a gap in the paper trail recording their compliance with legislation covering items of maintenance, repairs, and safety checks.

 

Tenants are likely to have been following the press coverage since the law came into effect on October 1st last year so may be well informed about their tenancy rights – and some more unscrupulous individuals could take advantage of the law to avoid vacating a property when served with a Section 21 notice.

 

Most important is that landlords ensure that at no time is a tenant given the opportunity to dispute a Section 21 notice. Undesirable tenants tend to become good amateur lawyers, or know someone who is or where to get advice on their rights, as soon as the possession notice arrives. No matter how frustrating the law may be, it’s therefore essential that you can prove the existence of gas and electrical safety certificates, the installation of smoke or CO2 alarms where required, and that general maintenance has been carried out, with defects corrected, as soon as practicable after work is requested by the tenant.

 

Once a tenant has made a complaint the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015. This makes it imperative for landlords to stay on top of their legal obligations for maintenance and that they attend to repairs before the tenant can head for the local authority’s office and seek the serving of an Improvement Notice.

 

Whenever you receive a complaint from a tenant regarding the condition of the property you must within 14 days give an “adequate” response in writing. If you don’t comply, a Section 21 notice may not be valid should it be used as evidence in court. The legislation refers to the complaint being in writing but possibly all complaints, no matter how minor, should be clearly logged and receive a response.

 

The section also provides that if the tenant is unhappy with your response he can complain to the local authority who may then serve a notice requiring works to be undertaken. If such notice is served, no valid Section 21 notice may be served for six months from the date of that notice.

 

Good processes regarding complaints handling, and a clear understanding by tenants as to who is responsible for accepting complaints, is now more important than ever in residential lettings property management.

 

As a reminder, the law also stipulates that at the start of the tenancy, the landlord or letting agent must give the tenant details of where and how the deposit is held and copies of both the EPC and, where applicable, the gas safety certificate and the Government’s eight-page booklet “How to Rent: the checklist for renting in England”. This is only available electronically and has to be printed and handed over each time.

 

Details of what must be served are contained in the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 which can be found here.

 

Good practice will no doubt dictate that at the time of serving the correct Section 21 notice the rest of the documentation should be re-served so that there can be no question of the tenant having received it.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Our lettings team shortlisted for Best Letting Agency Group in ESTAS Awards 2016

I have pleasure in announcing that our national lettings team has reached the final stages of the ESTAS Awards 2016, having been shortlisted for the Best Letting Agency Group. 

In the ESTAS regional categories, the Carter Jonas Barnes, Bath, Cambridge, Newbury, Wandsworth Common and Winchester offices have also been shortlisted. The ESTAS are one of the largest and longest running awards in the UK property industry and winners are decided purely on ratings provided by a firm’s clients. This year, the shortlist was announced based on the biggest-ever number of customer surveys. 

To be shortlisted for these awards is a real honour for our national lettings team and is testament to the hard work that we put in to ensure our clients receive the best possible service.  We’re extremely proud to be rated so highly by our clients and thank them for this. 

Since we began our lettings service to operate alongside our residential sales offering, it has been our aim from the outset to be included among the best national lettings agents, and so we are delighted to be recognised in this way. 

The winners of all categories will be announced at the annual ESTAS Ceremony held in April at the Grosvenor House Hotel in London. 

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Right to Rent is closer than you think

Right to Rent has been widely publicised as the need to check on a tenant’s immigration status with regard to occupying residential property in England.

But in reality it is much more; status checks need to be completed on every adult occupier aged 18 or over for all English tenancies starting on or after 1 February 2016.

The effective date from which to begin undertaking checks is January 3, 2016, the start of the 28 day period leading up to February 1 because all checks must be completed in the 28 day period before the tenancy comes into effect.

Whereas in the past a landlord or letting agent might meet the lead tenant and only hear about the others who would be occupying the property, the landlord or letting agent now needs to see every adult occupant who will occupy the property even if they are not named on the tenancy agreement while simultaneously checking immigration status and documentation.

There is no need to check an occupier’s children, but the landlord or letting agent should satisfy themselves that they are under the age of 18 at the time the tenancy begins and keep evidence of this. Further checks on a child will not be needed if the child turns 18 during the tenancy, unless and until the tenancy is renegotiated, or a repeat Right to Rent check is required.

There is no requirement to create a written tenancy agreement listing all those who will live in the property, but Home Office guidance suggests that landlords, agents and householders may find it advisable to do so. If the tenancy agreement is oral or implied, the checks should still be made on all adults living at the property. If there is evidence a landlord, agent or householder was aware of a person living in the property but did not check them, they may be liable to a civil penalty, regardless of whether the agreement is written, oral or implied.

It is advisable to record the following:

• The full name and date of birth of all adults who will live in the property;

• The names and dates of birth of all children under 18 who will be living with them in the property;

• Whether each of the adults named has current permission to be in the UK.

The requirements were enacted in the Immigration Act 2014, which also lists some exemptions I have highlighted below:

• landlords and agents do not have to check the Right to Rent of existing occupiers who moved in before the requirements are introduced;

• where the start of a tenancy pre-dates the requirements, and is renewed between the same parties at the same property without a break, then there is no requirement to conduct checks;

• holiday lets (but the Home Office advises that landlords letting holiday accommodation should consider how a person will be using the property to decide whether Right to Rent checks are necessary. A letting of three months or more, or extending time-limited lettings, would be circumstances where checks would be advisable.);

• agreements to which the Mobile Home Acts 1983 applies, that is an agreement under which a person is entitled to station a mobile home on a site and use it as their only or main home, are exempt. However, should a mobile home owner decide to let their mobile home for use by another adult, this residential tenancy agreement will be subject to the Scheme.

• A residential tenancy agreement that grants a right of occupation in accommodation provided by an employer to an employee, or by a body providing training to an individual in connection with that training, is exempt from the Scheme.

• All halls of residence (whether the landlord is an educational institution or private accommodation provider) are exempt from the Scheme, as is any accommodation provided for students directly by a higher or further educational institution.

• Leases which grant a right of occupation for a term of seven years or more are exempt. An agreement will not grant a right of occupation for a term of seven years or more if the agreement can be terminated at the option of a party before the end of seven years from the start of the term.

The following two groups of people have unlimited right to rent: British citizens, EEA and Swiss nationals.

A landlord will need to see evidence of any adult occupier’s identity (over 18 years) and citizenship e.g. passport or biometric residence permit and compare the original document with the individual face to face. Copies of the documents should be taken and retained for one year after the tenancy ends. The Home Office has published a landlord's guide to checking immigration documents, which may be useful for landlords click here. 

If it is not possible to check the documents before entering into the tenancy agreement (e.g. if the potential tenant is overseas), the landlord/ agent may enter into a conditional tenancy agreement – conditional on production of evidence of Right to Rent before moving in. 

The Act makes it an offence to let premises to someone (either the tenant or any adult occupying the property with them) who the landlord knows or has reasonable cause to believe does not have the Right to Rent.

Given the potential for discrimination, the Government’s code of practice advises that documents should be requested from all potential applicants. Refusing a tenant because they have limited right to remain may amount to indirect discrimination.

When Right to Rent was first mooted, there were concerns that people born in the UK might not hold a passport and therefore find it difficult to prove their residence entitlement. However, a combination of documents such as a birth certificate and driving licence (the guidance states with or without a counterpart, although counterparts have been invalid since June, 2015), are acceptable proof.

A landlord should know or have reasonable cause to believe a tenant does not have the Right to Rent if:

• It failed to check the documents in the first place.

• The tenant had a time limited or discretionary Right to Rent and that period has now ended. This means the landlord must monitor and make sure an occupier’s right to occupy does not lapse.

• The Home Office has served notice that the occupant has no Right to Rent. 

If a person sub-lets a property, they will have responsibility for making the checks, although this responsibility can be passed up to the landlord by agreement. It is recommended that the agreement as to allocation of responsibility for checks is in writing. Likewise, anyone who takes in a lodger should check they have a Right to Rent before allowing them to move in.

It is worth bearing in mind that in his March, 2015, Budget statement the Chancellor included under the section about a sharing society measures to amend its model agreement for an assured shorthold tenancy by summer 2015, to provide that tenants in private rented accommodation can request their landlord’s permission to sub-let or otherwise share space, on a short-term basis. 

The Immigration Act 2014 provides for a “civil penalty scheme” whereby landlords and their agents could face fines of up to £3,000 per tenant. If the Immigration Bill 2015 is approved in its current form, criminal sanctions may apply in situations where a landlord or its agent knows or has reasonable cause to believe that a person does not have a Right to Rent. Criminalising the sanction means that imprisonment may become an applicable punishment.

At Carter Jonas we are taking advice from the Association of Residential Letting Agents (ARLA) and Pain Smith Solicitors putting in place procedures ahead of the legislation taking effect in February in the areas in which we operate.  Where we do not manage our clients’ properties they will need to put in place their own procedures to check the tenant’s right to rent.

The landlords Code of Practice gives very helpful guidance and I recommend that everyone involved in residential lettings studies it. This link connects: https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation#only-home

A landlords’ guide to checking immigration documents can be found at: https://www.gov.uk/government/publications/rules-and-acceptable-documents-right-to-rent-checks

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Delay causes alarm - but be ready for quick introduction of new rules

There is considerable confusion within the lettings industry after the House of Lords literally pulled the plug on legislation that would have seen smoke alarms become compulsory from October 1 – only for it to be reinstated a week later.

Many in the lettings industry had already geared up for the change, seen as a major advance with regard to tenant safety. But the noble lords declared that the industry had not been consulted sufficiently ahead of the measure becoming effective so rejected the legislation with only three weeks to go to the deadline for implementation.

With exactly two weeks to go, the legislation was then passed meaning that from October 1 the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 will be in force.

All landlords in England, or agents acting on their behalf, will be required to install smoke alarms on every floor of their property and test them at the start of every tenancy.

Landlords or their agents must also fit carbon monoxide alarms in rooms with a solid fuel appliance, which includes wood burners and open fires.

Those who fail to meet the regulations face fines of up to £5,000.

Landlords who have not yet prepared for the smoke alarm installations believing that they no longer need worry about the October 1 deadline must now ensure they have the necessary alarms in place or risk being fined.

It is already the case that under the Buildings Regulations 1991 all newly built property from June, 1992, and houses in multiple occupation (HMOs) must have fitted mains-powered smoke alarms with battery backup.

For some time, in anticipation of the regulations that come into effect on October 1 we have been advising landlords to install smoke alarms in all properties to both protect the occupants and help prevent legal action against landlords.

It is also already a legal requirement for HMOs to have a carbon monoxide (CO) alarm fitted. We have been advising landlords to install CO alarms in all properties to protect the occupier and help prevent any legal action against the landlord.

Landlords of all rental properties (subject to a small number of exemptions – such as licensed HMO properties and properties where there is a resident landlord) are required to do the following:

1. Install at least one smoke alarm on each storey of a rental property that is used as living accommodation. These alarms may be battery powered or hardwired although some local authorities may have local regulations which require more stringent conditions. This requirement is for all rental properties, not just those with tenancies beginning after 01 October 2015. Install a CO detector in any room that contains a solid fuel appliance which includes coal- or wood-burning fires and wood-burning stoves. Wood-burning stoves installed since 2011 must already have a CO detector and a certificate proving they have been safely installed.

2. Currently gas appliances are not covered by the above Regulations but we strongly advise that CO detectors are installed in properties with gas- or oil-fired appliances. Remember, installation of CO alarms is a requirement for all rental properties with solid fuel appliances not just those with tenancies beginning after October 1, 2015.

3. Carry out testing to ensure that all smoke and CO alarms are in working order at the start of each new tenancy commencing on October 1 2015 or thereafter. There is currently no requirement to check alarms during the tenancy as this responsibility will lie with the tenant.

Ensure that you are ready for the October 1 deadline. Despite the confusion caused by a week when all believed the legislation might not go through, there is unlikely to be any period of grace.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Warm-hearted tenants are a better bet

It’s not long until changes come into effect regarding the energy efficiency of let properties.

From April next year, tenants will have the right to ask their landlords to approve energy efficiency measures under the Green Deal and while this may seem attractive the scheme has its drawbacks, not least that the Government has just decided to stop funding the Green Deal Finance Company.

Green Deal improvements were funded by repayments through the energy bills applicable to the property. If the benefits of the improvement outweighed the cost of making them then they suited Green Deal requirements.

But it was always much better to make these improvements yourself as an investment in your let property rather than use the Green Deal scheme which may have restricted which energy companies tenants could use in the future as not all providers were part of the scheme. While this may seem insignificant, consumers are growing more energy aware and may have resented having their opportunities to switch curtailed, particularly as a measure in the recent Budget was for switching to be made possible within 24 hours.

At Carter Jonas, approximately seven per cent of our lettings properties fall into EPC Bands F and G, possibly limiting their lettings potential. Landlords therefore need to start paying attention to the need to upgrade. It’s true that exemptions from the new rules will apply and all listed homes fall outside the EPC requirement but it’s never a good idea to rely on a loophole that can subsequently close.

My recommendation is that where tenants ask to have an energy urvey done you allow it to go ahead but then consider whether or not it’s to your advantage to implement the improvements yourself so you retain control. It may also be that the work can be completed at lower cost than any Green Deal scheme contractor may have offered and there was always the right to refuse improvements that were not cost effective.

Where listed buildings are concerned, it’s worth bearing in mind that the feature that has led to the listing may not actually be within the living space.

Garden walls and dovecots are among the many reasons a property can be listed and the doves are less likely to be worried about the energy-saving potential than the tenants!

If this affects you, then see how you can improve your property’s energy performance independent of anything a tenant may want to do. The appeal of living in a listed building is sufficient for many people to sign a tenancy agreement without question.

But how much better is it if your tenant not only feels warm-hearted towards the building because of its listing but also is actually physically warmed by its energy-saving features?

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

£3 million to help landlords meet fire safety rules

Private rented sector landlords will be required to have working smoke alarms on every floor of their property and carbon monoxide alarms in rooms where a solid fuel heating system is installed with effect from October 1, 2015.

Alarms must be tested at the start of every new tenancy - the regulations do not stipulate the type of alarm to be installed; rather, landlords should make an informed decision and choose the best alarm for their circumstances and property. Landlords who fail to comply with the duties outlined in the regulations may be subject to a civil penalty.

The good news is that the Government launched a £3million fund on March 19 which means thousands more tenants living in private rented homes will have working smoke and carbon monoxide alarms distributed through England’s 46 fire and rescue authorities.

The funding will benefit private rented houses across the country, providing around 445,000 smoke and 40,000 carbon monoxide alarms which will be available free from local fire and rescue authorities to private sector landlords whose properties currently do not have fitted alarms.

The new legislation coming into force in October that requires anyone renting out their home to ensure there is a smoke alarm on every floor of the home at the start of the tenancy is very positive and Carter Jonas property managers will ensure that our landlords adhere to this rule to ensure tenant safety.


However, whilst landlords will be under a duty to install and initially test alarms, Housing Minister Brandon Lewis, when announcing the proposals which he hoped would prevent 26 deaths and 670 injuries a year, said tenants were urged to “regularly test their alarms to ensure they work when it counts”.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

What the energy efficiency proposals really mean for the PRS

With apologies to Mark Twain for the paraphrasing, reports of the demise of poorer-rated, less energy-efficient domestic rental properties have been greatly exaggerated.

Twain was referring to the premature publication of his obituary notice. He was happily able to tell the world he was still alive.

Publication by the Department for Energy and Climate Change (DECC) of the Private Rented Sector Energy Efficiency Regulations (Domestic), which sets out the views of the Government on proposals for energy efficiency in the private rented sector (PRS), led to immediate reports that properties with EPC ratings (placing them in Bands F and G) could be doomed.

On the face of it, that’s what the document says. But read it and the story is less pessimistic. Owners of such properties should not give up hope.

The basic premise of the document, a response to a wide consultation on making let properties more energy efficient, is that from April 1, 2016, domestic tenants will have the right to request consent to make energy efficiency improvements and landlords would need to respond within a month under the regulations that have been laid before Parliament.

The minimum energy efficiency standard applied to all categories of domestic private rented property will be set at E energy performance, in line with the non-domestic sector. From April 1, 2018, the regulations will apply upon the granting of a new tenancy to a new or existing tenant, extending from April 1, 2020, to all privately rented property within the scope of the regulations.

But, crucially, there is the ability for landlords to seek exemptions. The essential paragraph reads:

Where a landlord considers an exemption applies allowing them to let their property below the minimum energy efficiency standard, the landlord will need to provide such evidence to a centralised register, the “PRS Exemptions Register.” Landlords may be required to submit relevant evidence and details of their exemption to the Register. The Government may use this information to assist local authorities in targeting their enforcement activity.

There will be a number of safeguards to ensure that only appropriate, permissible and cost effective improvements are required. Landlords will be eligible for an exemption from reaching the minimum standard where they can evidence that one of the following applies:

- They have undertaken those improvements that are cost-effective but remain below an E EPC rating. Cost effective measures are those improvements that are capable of being installed within the Green Deal’s Golden Rule. This ensures that landlords will not face upfront or net costs for the improvement works.

- They are unable to install those improvements that are cost-effective without upfront cost because the funding entails Green Deal finance, and they or their tenant fail the relevant credit checks.

- The landlord is required by a contractual or legislative obligation to obtain a third party’s consent or permission to undertake relevant improvements relating to the minimum standard, and such consent was denied, or was provided with unreasonable conditions.

- The landlord requires consent, and the occupying tenant withholds that consent.

- Measures required to improve the property are evidenced by a suitably qualified independent surveyor, for example from the Royal Institution of Chartered Surveyors (RICS), as expected to cause a capital devaluation of the property of more than 5%. Only those measures that are expected to cause such devaluation would be exempt from installation.
- The regulations will also include specific protections relating to wall insulation improvements as an additional safeguard for the minority of situations where such insulation may not be appropriate. There will be no requirement to install wall insulation under the regulations where the landlord has obtained a written opinion from a suitably qualified person or from the independent installer engaged to install the measure advising that it is not an appropriate improvement due to its potential negative impact on the fabric or structure of the property (or the building of which it is part).

The long term hope is that the ratio between the cost of implementing change in comparison to the value of savings to be made in the domestic energy bill will naturally adjust to the point where they coincide in the vast majority of cases. The recent fall in oil prices, and consumers’ hope that domestic energy prices will follow more closely, might damage these prospects in the short term.
However, energy prices will inevitably rise again in tandem with technology improving to make energy efficiency more easily achievable at affordable costs.

Coupled with this is the knowledge that no Government will want to willingly remove otherwise good housing stock from the PRS. The political colour of the UK Government at Whitsun is likely to be very different from that of the Government on the May Day bank holiday. But whether the predominant shade is blue or red, and whatever fringe parties are tugging at the sides of the wheel to get their own policies into play, neither major party will steer a course that sees homes with lower energy efficiency ratings removed from the PRS in the foreseeable future.

Labour will not want to deny people perfectly good homes when voices are already loudly raised about the amount of good housing stock that stands empty. The Conservatives, with their commitment to austerity, will not want to fund the replacements for these homes from the public purse. Of course, nobody will get away with using the regulations for letting seriously sub-standard property and nor should they.

The Government is promising guidance between now and the implementation of the regulations from April 1 next year and there’s a requirement to review the operation and effect of them at no less than five yearly intervals, with the first in 2020 by which time it will have evidence about the progress and effectiveness of the regime.

Far from being a portent of doom for domestic rental properties in Bands F and G, look on the proposals as a long term fitness regime for the less able to be brought up to peak physical performance and with the proviso that those who can’t won’t be relegated to the scrap heap.

Details of the legislation can be found here.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

UK landlords should take care in reporting rental incomes

With the January 31 deadline for submitting self assessment tax returns to HMRC and paying any income tax due now passed there’s a temptation to put all thought of tax affairs to the back of your mind.

Some time ago, HMRC announced it would be looking into under declarations of rental income by landlords in its Let Property Campaign, giving buy to let and other private landlords the opportunity to make a full and voluntary declaration of any tax owing on relatively favourable terms.

HMRC has widened its sweep and has the power, through issuing statutory notices, to force lettings agents to provide details of rents collected on behalf of all landlords. It estimates up to 1.5 million landlords may be under declaring every year and has sophisticated data gathering abilities to check figures.

Already, it has announced that almost £8 million has been collected from landlords who under declared so make sure your house is in order, so to speak, and voluntarily contact HMRC if you suspect there may be anomalies.

Tenant deposit loans

In the last issue of Clearer View I outlined the new tenant deposit loan scheme launched by the Government into both the public and private employment sectors.

It’s worth pointing out that if a deposit is being paid by a third party on a tenant's behalf by way of an agreement with that tenant then the s213(10) of the Housing Act 2004 definition applies to those paying deposits on behalf of tenants as "relevant persons" and they must be served the information prescribed by the Housing (Tenancy Deposits)(Prescribed Information) Regulations 2007 covering key information about the tenant deposit and where it is protected.

Failure to do so could mean it is not possible to serve a valid notice under s21 of the Housing Act 1988 on any tenant when the prescribed information has not been served on them and on any relevant person. In addition either the tenant or the relevant person (or possibly both of them) can make a claim for the usual financial penalties.

Landlords and agents must convey the necessary information to employers in good time.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

Child safety should be the focus

Child safety is at the forefront when many people are shopping at this time of year but, professionally, it should also be a concern for landlords.

This is especially so in the home with regard to anything used for internal blinds or curtain tracks including, but not limited to, vertical blinds, roller blinds, Roman blinds, and plantation shutters which are now subject to 40 pages of regulations published by the British Standards Institution and based on European standards.

If that sounds over complicated, the British Blind and Shutter Association has a very helpful leaflet on-line that explains what’s needed - click here - where’s helpful video content and a downloadable explanatory pdf.

Where new blinds are being fitted, they must comply with the regulations and have built-in safety systems but where this is not feasible due to window shape or location separate safety systems can be used such as chain or cord tensioners.

In either case, there are regulations governing the lengths of cords or chains.

Properties where blinds are already installed can still be made safe – the relatively simple installation of cleats on which to wind cords when not in use may be an efficient and cost-effective solution to prevent young children being strangled in the loops created by cords or chains.

Of course, such devices are only effective when they are used. If your properties are furnished, cots, playpens, and other furniture should be placed away from windows to avoid children climbing up, an activity they all seem to love.

The regulations apply to all premises where children aged between 0-42 months are present or likely to have access – almost everywhere!

Our property managers are available to assist with adjusting existing installations and, where applicable, installing new blinds or curtain tracks.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

New code will help tenants and landlords

The Private Rented Sector Code of Practice endorsed, and commissioned, by the Government and drawn up by the Royal Institution of Chartered Surveyors (RICS) has launched.


Another 16 industry bodies, including ARLA and The Property Ombudsman to which, with RICS, we are affiliated, joined RICS in its creation. Some key points of the code affecting landlords are:

- Landlords should choose agents who are members of an accredited body; belong to an independent redress scheme; have client money protection; and have insurances such as professional indemnity.

- Agents should keep client money separate, in a dedicated client account which should be in credit at all times and kept in an FCA-authorised bank or building society. Any interest earned on client money should be credited to the client or tenant.

-Agents should declare any commission received from the repair and maintenance contractors at the time that estimates for work are provided to the landlord.

-Carbon monoxide detectors should be provided in all properties with a gas or solid fuel appliance.

Electrical certificates should be provided to the tenant. Full wiring tests should be carried out every ten years (five years in HMOs). There should also be regular portable appliance tests (PATs).

-If the tenant refuses access, neither landlord nor agent can enter without a court order.


It’s all fairly straightforward but the difficulty has always been that many tenants, and quite a number of landlords, don’t know what to look for when they are seeking a property to live in or, in the case of a landlord, someone to manage a letting on their behalf.

Hopefully, this new guidance will make life easier for those who need to buy rather than rent and we are looking to put all parts of it into practice.

The Code can be downloaded here.

Lisa Simon, 

Partner Head of Residential Lettings

T: 020 7518 3234 

E: lisa.simon@carterjonas.co.uk

PRS - A political hot potato

The private rental sector (PRS) is in danger of becoming as hot a political potato as the EU.

Labour currently has no intention of a referendum on EU membership while Ukip has driven the Tories to despair with its relentless campaign to abandon the EU - and a referendum policy as a populist idea.

But what could be more populist than introducing controls for the PRS, driven by the urge to do highly visible things such as ending letting agents’ fees, which Labour has failed to push through before the General Election in May 2015 but which it promises will be on its agenda, along with three year tenancy terms and fixed rents?

Rent caps in places of high property values are one of the biggest fears that could drive the PRS into terminal decline. Yields become ever smaller as rents are constrained during periods of strong capital growth. Many owners would find it more beneficial to cash in and invest the money somewhere more sensible. Even a bank deposit account with three per cent interest could be better than renting at two per cent yield with all the accompanying risks of repairs, dilapidations, and the costs of regaining possession when yesterday’s dream tenant becomes tomorrow’s nightmare as their economic circumstances change.

Figures from ARLA show that 17 per cent of landlords are expected to sell one or all of their properties in the next 12 months, the highest proportion since 2008. The same source also revealed 59 per cent of lettings agents are reporting more would-be tenants than properties available. Just as the PRS needs to retain landlords, many are plotting their escape route to reap the benefits of the property price surge.

When you talk to lawyers and owners of high end properties in London’s prime quarters it becomes apparent that what interests buyers more is long term capital growth than short term low yield income. Buy to let is out, buy to reap substantial profit could well be coming in if it’s not here already.

Rent caps across the country are unrealistic because there are so many regional variations in property prices and therefore what seems like a fair return on investment. Are we to return to the days of the regional Rent Tribunals as the first avenue of escape for tenants served with notice to quit? The Tribunals, chaired by lawyers, could fix rents as well as deflect a notice to quit and were readily accessible to tenants with some savvy and no lawyer.

With commentators predicting that in very short time there will be more private sector renters than owners, restrictions on landlords and lettings agents could be as good for Ed Miliband as the right to buy council houses turned out for Margaret Thatcher.

Longer tenancies are also a real issue. A tenant who seems heaven-sent on day one could be the tenant from hell by month seven but then it would be too late to serve notice so easily. Employers, who see their staff and assess their performance every day, get four times the trial period it’s proposed to give landlords even though contact with the tenant is frequently non-existent and, at best, sporadic. Three year tenancies by default with a six month trial period will be seen as too risky to be realistic by many landlords. What is designed to protect tenants could actually reduce their chances of finding a home in the first place if availability shrinks. Rents would then rise because the cap is intended to be assessed through market conditions.

Lettings agents’ fees are another conundrum. It’s wrong, it’s said, for agents to charge for referencing or administration such as the inventory but under current plans landlords, and their agents by default, will soon be responsible for checking the immigration status of tenants and their right to live and work in the UK. This would need to apply to every tenant, with a birth certificate and some form of photographic identification to be safe even for those claiming UK birth and lifelong residence. Let to the wrong person and there’s a £3,000 penalty. If that person is working without the right to do so the penalties are stiffer still. When a tenant with the right to live in the UK arrives on the doorstep and it then transpires they don’t have the right to the employment they are using to pay the rent what does the landlord do - allow the tenancy because there’s no right to deny it and then report the tenant for paying the rent?

Someone has to fund the lettings agent’s time in processing all this as Civil Service substitutes because few landlords will want to undertake the task. If there are no fees for tenants, only for landlords, then rents will have to rise to cover the cost. But when the rent is capped, how can the cost of fees be applied?

There is too much fag packet planning and not enough real thought going into all this regardless of which political party happens to be having another bright idea today. Everyone is agreed on the importance of the PRS, everyone agrees it could be fairer all round, but who is going to sit down and work it all out as a policy and not a series of knee-jerk responses to the latest comment article?


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk

The rumblings of the Superstrike case continue

The rumblings of the Superstrike case continue, with a tenant defeating a notice to quit in a hearing at Birmingham County Court.

It’s not clear from reports of Gardner v McCusker 3BM70525 whether the notice served was under 21 (4) (A) for a periodic tenancy or a 21 (1) (B) for a fixed term and whether the Section notice was invalid simply because the agent had used the wrong one.

What is clear, however, is the landlords or their agents must ensure they re-serve prescribed information when a tenancy changes from an assured shorthold to a periodic.

The tenant, McCusker, agreed a fixed term for six months in November 2009. There was a deposit of £600, protected in the MyDeposits scheme in January 2010. There were various attempts to serve the prescribed information between November 2009 and September 2012. In May 2010, the fixed term tenancy expired and a statutory periodic tenancy arose. In March 2013, a notice under s.21, Housing Act 1988 was served. Possession proceedings were issued and met with a defence and counterclaim contending that there had been, inter alia, no service of the prescribed information in respect of the statutory periodic tenancy.

The court regarded the failed attempts to serve as non-service, the claim by the landlords (Gardner) for repossession failed, and they were ordered to repay the deposit and a penalty, a total of £1,800, plus costs, some of which were offset against rent arrears.

The moral of the story is that after an AST ends and the tenancy becomes periodic it must be regarded as a new tenancy and although the deposit is not subject to any specific transfers between parties again and remains with the deposit scheme it is regarded as a new deposit in law.

Superstrike and its ramifications are still under consideration by the Government with a view to legislative change but until this occurs a belt and braces approach must be taken with all prescribed information served again successfully in order to protect the landlord’s rights should repossession become necessary.


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk

Stay safe with electricity

Electricity is a powerful thing - we all rely on it being there and assume it is, even though we can’t see it.

But all electrical installations deteriorate with age. If things go wrong we can certainly feel it and its potential to be instantly lethal is perhaps greater than any other source of danger in a domestic property.

The most recent figures available, for 2010, reveal that 422 people died in England, Scotland, or Wales from electrocution and/or fatal electric burns suffered at home. Electrical fires in homes resulted in 48 deaths and 3,324 injuries.

Landlords are required by law to ensure:

• That the electrical installation in a rented property is safe when tenants move in and maintained in a safe condition throughout its duration
• The appliances supplied, such as cookers and kettles, are safe
• That a House in Multiple Occupation (HMO) has a periodic inspection carried out on the property every five years
• That any appliance provided is safe and has at least the CE marking (which is the manufacturer’s claim that it meets all the requirements of European law)

To meet these requirements, a landlord will need to regularly carry out basic safety checks to ensure that the electrical installation and appliances are safe and working.

Carter Jonas recommends an Electrical Installation Condition Report (EICR), a condition report which confirms as far as reasonably practicable whether or not the electrical installation is in a satisfactory condition for continued service and suggests it is carried out every five years on every rental property rather than just HMOs. This is in line with recommendations from both the Government and Electrical Safety First. The report will also identify any damage, deterioration, defects and/or conditions which may give rise to danger.

We also recommend an annual test delivering a Portable Appliance Testing certificate (PAT) on all portable appliances in furnished properties.

When appliances are supplied with a property, it’s important that operating instructions are also supplied and that they are still at the property when there’s a change of tenants. Best advice is to minimise the number of appliances.

There is no statutory obligation on landlords or agents to have professional checks carried out on the electrical system or appliances. However, under Common Law and various statutory regulations: The Landlord and Tenant Act 1985, The Housing Act 2004, The Electrical Equipment (Safety) Regulations 1994, and the Plugs and Sockets etc. (Safety) Regulations 1994, both of which come under the Consumer Protection Act 1987, there is an obligation to ensure that all electrical equipment is safe.


Lisa Simon, 
Partner
Head of Residential Lettings
T: 020 7518 3234 
E: lisa.simon@carterjonas.co.uk