#ExpertView: The 3 Most Common Property Law Questions Asked by Agents and Landlords

PainSmith Solicitors ExpertView

In this week’s #ExpertView, property law specialists, PainSmith Solicitors, reveal the most frequently asked questions that come in via their legal helpline. If you’re looking for answers to common questions about Section 21 notices, the Tenant Fees Act, professional cleaning and electrical safety requirements, this professional legal advice will help.

1. Questions About Section 21 Notices and Service of How to Rent by Email

It is well established that, before a valid Form 6a (Section 21) Notice can be served upon an Assured Shorthold tenant, they must be provided with a copy of the government’s publication ‘How to rent: the checklist for renting in England’. Over recent years, traditional hard copy correspondence has become less common in favour of electronic means of communication and document execution, particularly during the COVID-19 pandemic. Landlords and agents may therefore assume that the How to Rent can be safely served on tenants by email or by embedding the document within a contract sent over for electronic signature. However, this is not necessarily the case.

Regulation 3 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 states that the How to Rent may be provided to the tenant—

(a) in hard copy; or

(b) where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.

This means that unless the tenant has specifically consented to service by email and provided their email address, such service will not be effective and the requirements for a valid Section 21 notice will not be fulfilled. This is something that could be raised by a tenant in a claim for possession issued upon a Section 21 and, in the absence of proof of the tenant’s consent, a Judge may not be satisfied with the validity of the Notice and could strike the claim out. The simple method of ensuring consent has been obtained from a prospective tenant to serve the initial documents on them by email is to ensure each person forming the Tenant signs a declaration as follows: (insert name) confirms the following documents can be served on them at the following email address (insert email). Then the person must sign the declaration.

Whilst legislation does not make the same explicit provision for Gas Safety Certificates and EPCs, we would suggest the same approach is adopted for the avoidance of doubt.

2. Questions About Tenant Fees Act 2019 and Professional Cleaning

Since 1 June 2020, the Tenant Fees Act has applied to all Assured Shorthold Tenancies (ASTs) regardless of whether they were entered into prior to commencement of the Act on 1 June 2019. Under the Act, landlords and agents cannot charge any fees to tenants other than those expressly permitted.

It is likely that ASTs which were entered into before 1 June 2019 will contain provisions which are now prohibited by the Act. Such clauses ceased to be binding from 1 June 2020 and landlords and agents cannot require tenants to comply with them. A common example is a clause requiring tenants to pay for the property to be professionally cleaned at the end of the tenancy and/or to use a particular cleaning company. This is not an expressly permitted fee and charging this would be in breach of the Act. Similarly, landlords cannot require tenants to pay fees associated with additional cleaning related to COVID-19.

This does not, however, mean that the tenant has no responsibility to clean the property. Clauses which require tenants to ensure that the property is cleaned to a professional standard and to return the property in the condition that it was at the start of the tenancy remain enforceable. In addition, if the property is left dirty then if the Tenancy Agreement states that the tenant has to compensate the landlord for all costs incurred in cleaning the property to the same standard as shown in the inventory and schedule of condition at the start of the tenancy such a charge can be enforced.  The landlord has incurred a loss which is chargeable under the above Act.

Landlords and agents should take care not to breach the Act as doing so can result in financial penalties and will affect the ability to serve a valid Section 21 Notice.

3. Questions About Electrical Safety Requirements

  •  Do I need an EICR?

An EICR is required for all rental properties where a private tenant has a right to occupy the property as their only or main residence and pays rent. Exemptions are set out in Schedule 1 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.

The electrical installations must comply with the 18th edition of the Wiring Regulations. Any report produced that does not meet these standards will not be satisfactory therefore a new EICR will be required.  If the property is newly built or has been completely rewired it should have an EIC which can be provided to the tenant.  If this is the case the landlord is not required to undertake further checks until 5 years after the EIC was issued, provided that it is compliant with the current regulations.

Local authorities can fine landlords who are not in compliance with the regulations up to £30,000.

  • My EICR has faults reported, what is required?

The EICR may raise any of 4 fault codes:

  • Code 1 (C1): Danger present. Risk of injury. The electrical inspector may make any C1 hazards safe before leaving the property.
  • Code 2 (C2): Potentially dangerous.
  • Further Investigation (FI): Further investigation required without delay.
  • Code 3 (C3): Improvement recommended. Further remedial work is not required for the report to be deemed satisfactory.

If a C1 or C2 fault is raised on the report further remedial work will be required. Depending upon the comments for the C1 failure the tenant may have to be rehoused while the property is re-wired. The report will state that the installation is unsatisfactory for continued use. Where required, remedial work should be completed within 28 days or any shorter period as stated in the report, written confirmation that the work is complete will then need to be provided to the tenant and local authority. Landlords do not have to carry out works for C3 faults, however improvement is recommended.

If you would like further legal advice on property law, contact PainSmith Solicitors.

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About the Author – PainSmith Solicitors

This article was written by the team of experienced helpline advisors at PainSmith Solicitors.

PainSmith Solicitors specialise in commercial and residential lettings and residential long leases. With unrivalled practical experience and knowledge in the property legal sector, PainSmith are not simply ‘eviction specialists’ but cover all aspects of property law, with particular strengths in more complex areas such as residential agricultural tenancies, tenancy deposits and the new Housing and Planning Act 2016.

Whether you are a property owner; letting, managing, or estate agent; surveyor; landlord; or tenant involved with commercial or residential property, PainSmith have the skills and experience to bring or defend a range of claims.

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