Renters’ Rights FAQs - An Overview
Back when Wales was implementation its Renting Homes (Wales) Act I was working at Dutton Gregory and they ran a telephone helpline for landlords and letting agents to ask for advice. DG covered Wales and so we had a small team whose focus was on answering those questions. We put together an FAQ which started as a summary of the legal changes. When people phoned the helpline and the FAQ was not sufficient to answer the question we found the answer out and updated the FAQ so it would be able to answer it in the future. Using that model we made an FAQ that was incredibly robust and simply got stronger and stronger.
I want to do the same thing with Renters Rights.
What I will do is set out a summary of the key parts of this legislation (note, my focus is on the private rental sector in England so I will not be dealing with things that fall outside of this) and then, as and when I get asked questions about it, I will update this. I want this to be the most comprehensive overview of this legislation and I need questions in order to achieve that, so fire away.
Please email questions to ryan@heavenllc.co.uk or message me on Linkedin: www.linkedin.com/in/ryan-heaven
Royal Assent Date: NOT YET KNOWN
Commencement Date: NOT YET KNOWN
Fixed Terms (Section 1 to Section 3 of the Act)
All fixed terms will become periodic as of commencement date. Nothing needs to be done to inform the tenant of this, but it is possible that the government will make a requirement akin to serving a new How to Rent Guide. When the transition in Wales happened it was a requirement to let existing tenants know within 6 months of the transition.
Rental periods cannot be longer than a month. There is nothing to stop a tenant from paying more than a month if they want to put the rental account in credit, but you cannot require them to make such a payment.
Rent Increases and Challenges (S7-S8)
All rent increase clauses will cease to exist.
The only way to increase the rent will be via Section 13 Notice. Cannot increase within the first 12 months of the tenancy.
Two month minimum notice period up from one month, to take effect from the rent due date after the notice period. For example, rent is due on the 1st of the month. Notice is served on the 14th December. The minimum notice period takes us to 13th February and the rent increase will occur from 1st March.
There is a prescribed form, currently known as Form 4, but it will likely be updated by commencement date.
Within the first six months of the tenancy the tenant can have the rent assessed at tribunal to be set to a market level, if they do not believe it is at that level. This mechanism essentially makes any negotiation about the rent level obsolete since the tenant can just accept whatever the landlord wants and then immediately challenge it.
Ban on Rent in Advance (S9-S10)
A maximum of one month’s rent can be taken between a) the tenancy being ‘entered into’ and b) the tenancy starting (referred to as the ‘permitted period’ in the Act.
Question: when is a tenancy ‘entered into’?
This is not a clear-cut event, but a tenancy which has been signed by both parties and ‘executed’ (i.e. dated) would be regarded by most lawyers as having been entered into. There is a grey area in that it is possible for a contract that has been signed by the tenant to be considered ‘entered into’ and if you are at all concerned about this it would be best not to send a contract to be signed unless you are prepared to enter into a contract
Once the tenancy has started the tenant can pay however much rent they want if they want to put the rental account in credit, but you cannot require a tenant to make advance payments like this.
The ban on rent in advance is a prohibited payment under the Tenant Fees Act 2019 so you cannot accept extra money within this period even if the tenant offers it.
You can take other payments (deposit, holding fee etc.) because the ban explicitly only affects rent.
Pets (S12-S13)
There is a set process for a tenant to request permission for a pet which cannot be unreasonably refused.
The request and all responses are to be in writing. The tenant must
The landlord has 28 days to provide a response to the request, unless the landlord requests further information about the pet in which case the response must be within 7 days of the tenant providing the requested information, or unless an extension is agreed.
If the landlord must request consent from a third party, such as a freeholder, the landlord must request that consent within the initial 28 days and must provide a response to the tenant within 7 days of receiving a response from the third party.
The landlord can request that the tenant obtains pet damage insurance as a condition of granting consent.
The only stated reason a landlord can refuse permission ‘reasonably’ is if a third party refuses consent (S16B(4) Housing Act 1988 introduced by S12 of the Act).
Question: What if the landlord is allergic to pets?
I doubt this would meet the criteria of reasonable refusal of consent. As the Act itself specifies circumstances that would be reasonable, it suggests that a scenario outside of those circumstances would not be reasonable.
Tenant’s Notice (S22-S23)
A tenant may give notice at any point after the start of the tenancy. There does not appear to be any ability to give notice before the tenancy begins.
Unless the landlord agrees otherwise, the minimum notice period must be two months. The notice does not have to be given or expire on a particular day. There does not seem to be any reason for a landlord to agree to a lesser notice period, so this essentially guarantees a two month minimum tenancy period.
The tenant’s notice must be in ‘writing’ but ‘writing’ means any method of written text so it could be through email, WhatsApp or social media in principle, but it cannot be verbal.
Discrimination (S35-S44)
Landlords cannot discriminate against tenants with children or tenants in receipt of benefits.
As a note, both of these issues have been raised before in the context of indirect discrimination on the basis of gender. Women are more likely to have children and more likely to be in receipt of benefits so the argument has always been that refusing tenants on these grounds is discrimination, and it is already poor practice to market a property as such. This change really just puts it beyond doubt.
Rental Bidding (S58)
The rent must be stated on the marketing materials and the landlord cannot accept a bid higher than the marketed rent.
It is anticipated that landlords will market a property at a higher rent than they except to receive so as a way to encourage bids up to the marketed rent. It is not clear how this will actually work in practice since tenants have the ability to immediately challenge the level of rent at the property tribunal (See Section 8 of the Act).
Landlord Redress Scheme
More information to follow – this is to be fleshed out in later regulations.
Private Rented Sector Database
More information to follow – this is to be fleshed out in later regulations.
Decent Homes Standard
More information to follow – this is to be fleshed out in later regulations.
Commencement and Transitional Provisions (S145-S148)
(note: See also Schedule 6)
The majority of the Act is coming into force on a date after Royal Assent to be set by the Secretary of State. Whilst there are some people out there who believe that the commencement date will be soon, or immediately after, Royal Assent, the Government have been very clear that they do not intend to do this. The real question is how much notice (i.e. the time between Royal Assent and commencement) will be given. That is still unknown, and we may not know until such a time as the Secretary of State sets a date.
Tenancies that already exist at the commencement date will be converted into ‘Section 4A Assured Tenancies’. These tenancies are not considered ‘new’ tenancies.
New or Amended Grounds (Schedule 1)
Ground 1 (Amended) and Ground 1A (NEW)
Note: I have grouped these two together because they function basically identically except for the circumstances in which they can be utilised. I will set out their unique circumstances below and then go on to explain the rules that apply to them both.
Ground 1 can only be used if the landlord or a member of the landlord’s family needs to live at the property as their primary residence.
The family members are what you would expect: spouse or civil partner; the landlord’s, parent, grandparent, sibling, child, or grandchild; or, the spouse or civil partner’s parent, grandparent, sibling, child, or grandchild.
Ground 1A can only be used if the landlord intends to sell the property. An intention does not require a landlord to have taken any concrete steps to sell the property, but taking those steps will help to prove the intention.
Both have a 4 month minimum notice period which cannot expire within 12 months of the start of the tenancy (see question below). For tenancies that pre-date the act, the 12 months starts from the start of the tenancy and not from when the act comes into force, so a notice could be served on these grounds the day after commencement.
The property cannot be re-let (see below) within the ‘restricted period’. The restricted period includes a) the notice period, and b) 12 months from the date when the notice expires. This guarantees a minimum restricted period of 16 months, and perhaps longer if a longer notice period is given.
I have used the word ‘re-let’ above, but it is actually much broader than that. The property cannot be:
a) marketed for let
b) occupied under a licence for money
This excludes tenancies and short-term lets. The only permissible occupation would be:
a) someone who is allowed to live there rent-free, or
b) if using Ground 1, the landlord or their family.
If a landlord re-lets the property within the restricted period they may face a Rent Repayment Order (see Rent Repayment Order section for more information) or a civil penalty from the local authority (HOW MUCH????) SECTION 16E OFFENCE
Question: When is the earliest I can serve a Ground 1/Ground 1A notice?
The answer to this question is the importance of the word ‘serve’ rather than ‘expire’. The legislation states that a notice cannot expire within 12 months of the start of the tenancy, but a notice can be ‘served’ i.e. given to a tenant before 12 months. It does not need to be given at the end of month 8 to expire at the end of month 12; it can be given before then as the 4 month notice period is simply the minimum notice period.
A Section 8 notice has a 12 month shelf-life anyway (regardless of ground used) so as long as you are not giving the notice with the tenancy agreement itself you should be fine to give it at any point thereafter.
Ground 4A (NEW)
Several conditions must be met to serve this notice:
a) The property must be a HMO or within a HMO.
This means that single dwelling units will not be able to use this ground. HMO does not mean licensable HMO; it simply means that a property is occupied by at least two persons who are from different households.
b) The tenants are either:
i) students, or
ii) likely to become students
when the tenancy is entered into.
This means that the ground can still be used if a student stops being (or fails to become) a student as long as the landlord reasonably believed they would be a student at the start of the tenancy.
c) The landlord told the tenant before the tenancy is entered into that the landlord intends to use Ground 4A to end the tenancy
This is a ‘pre-notice’ i.e. a notice that must be given before the actual notice can be given. For the transitional period (i.e. tenancies that were entered into before the act came into force) then the pre-notice must be given within one month of the commencement date.
I have prepared a template pre-notice which can be found here:
https://www.heavenllc.co.uk/blog/ground-4a-pre-notice
d) the tenancy cannot have been entered into more than six months from when the tenancy is due to start.
e) the notice must expire between 1st June and 30th September.
f) The landlord intends to re-let the property to students in the next academic year once the existing tenants have left.
Assuming all conditions are met then a notice can be served. The notice period is at least four months.
A landlord can give more than the minimum notice period. In fact, a landlord could give the notice with the tenancy agreement if they wanted to on the assumption that a student let does not normally last for a full 12 months. It may be worth serving notice closer to the expiry date if only to manually remind the tenants that they are expected to leave in the summer.
Grounds 8, 10 and 11 (Amended)
The notice period has increased from two weeks to four weeks. The threshold for Ground 8 has become 13 weeks (from 8 weeks), or three months (from 2 months), rent arrears.
Application to Existing Fixed Term Tenancies (Schedule 6)
Question: What happens to existing fixed term contracts?
If an existing tenancy is still in a fixed term at commencement date then that fixed term immediately ends, which means a tenant can give notice after commencement date even if a fixed term would have locked them into a longer contract.
If an existing tenancy requires payment of rents for a period of more than one month then the rental period is automatically converted into a compliant frequency from the next rent due date. E.g. Rent is due from 2nd June to 1st December. Commencement date is 1st October. The rental will be monthly from 2nd December. (Para 2)
Question: When is the latest that I can serve a Section 21 Notice?
A Section 21 Notice can be served the day before the commencement date, but the Section 21 Notice will only be valid until either:
a) six months from the date of service of the Section 21 Notice (which is the current default life-span of a Section 21 Notice), or;
b) three months from the commencement date, if that date is earlier than the above date.
Basically, notices served three months before the commencement date will be unaffected. Notices served less than three months before the commencement date will have a cut-off date of three months after the commencement date.
Lastly, the legislation says the proceedings must be ‘begun’ within these timeframes. Existing caselaw suggests that ‘begun’ means that the Court must actually have issued the claim. Given that the speed of local courts is variable, a landlord in practice has less than the timeframes set out above.
Once issued at Court, the Section 21 Notice will remain valid until the claim has concluded one way or the other. (Para 3)
Question: What about rent increases that were started before commencement?
So long as the process was started before commencement (i.e. notification of a rent increase under a contractual provision, or the service of a Section 13 Notice) those will continue to be binding as they were valid under the laws as at that time. (Para 5)
Question: What if the tenant has given notice before commencement?
Whilst there are rules in the Act about tenant’s notice, those rules do not affect a notice given before commencement. (Para 8)
Question: What about Section 8 Notices served before commencement?
Similar to Section 21 Notices, all notices which pre-date the commencement date will be invalid in one of two scenarios. The cut-off dates are:
a) 12 months from the date of service of the Section 8 Notice (which is the current default life-span of a Section 8 Notice), or;
b) three months from the commencement date, if that date is earlier than the above date.
Practically this will be less of an issue than the Section 21 Notice since most of the common possession grounds (e.g. rent arrears, breach of contract) have quite short notice periods and also a gracious 12 month period in which to issue proceedings so a landlord has much more time to issue proceedings on them; if a landlord loses out on a Section 8 Notice because of this change it will be because they were being indecisive about taking action. (Para 15)
Question: What information does a landlord need to provide to a tenant?
There is scope within the legislation for the landlord to be required to provide information about the changes in the law to the tenant. A similar requirement occurred in Wales when they implemented the Renting Homes (Wales) Act. This requirement is likely to take the form of an amended How to Rent Guide, but this is still to be confirmed. (Para 6)
