The Defective Premises Act 1972 imposes a duty on Landlords to take reasonable care to see that tenants and visitors are safe from personal injury or disease caused by a defect in the state of the premises. Whilst not specifically mentioned, this includes asbestos. In addition, a Landlord could be guilty of a criminal offence if anyone is exposed to a risk from asbestos. A Landlord should ensure that a risk assessment is carried out and if there are any doubts, employ a competent contractor to carry out any repairs or other works. Any landlord who commissions repair or construction work has to comply with CDM Regulations which include an obligation to notify the present tenant of asbestos where the landlord is aware of this. The Control of Asbestos Regulations require that a risk assessment is carried out before any work is started to see if asbestos is present and to ensure that appropriate precautions are taken to deal with asbestos which is present. Special rules apply to the common areas of blocks of flats and bedsits (not to individual flats) and Landlord is obliged to investigate whether asbestos is present in the common parts. If so, the Landlord is required to monitor its condition as well as putting control measures in place. Anyone who may be at risk as a result (eg a contractor carrying out work) must be notified of the presence of asbestos. The measures must be kept under review, at least annually.
The Landlord is obliged to ensure that electrical installations and appliances are safe and are in proper working order throughout the tenancy. It is necessary to carry out regular visual inspection of all electrical plugs, sockets, leads, appliances and goods and any that are faulty must be removed and replaced. We recommend that Landlords have periodic checks done by a qualified electrician and also recommend that electrical equipment is PAT tested on a tenant changeover and at regular intervals.
Failure to comply with the regulations is a criminal offence and may result in fines and custodial sentences.
Energy Performance Certificates (EPCs) are needed whenever a property is rented. You must order an EPC for potential tenants before you market your property to rent. This must be made available to tenants if they express an interest in letting your property as it is classed as material information about the property along with knowledge of the Council Tax Banding.
An EPC contains information about a property’s energy use, typical energy costs and recommends ways to save energy. Since April 2018, landlords of privately rented domestic and non-domestic property in England or Wales must ensure that their properties reach at least an EPC Rating of E before granting a new tenancy to new or existing tenants.
From 1 April 2020 these requirements will apply to all private rented properties in England and Wales, even where there has been no change in tenancy arrangements.
If a landlord believes that an F or G EPC rated property qualifies for an exemption from the minimum energy efficiency standard, an exemption must be registered on the National PRS Exemptions Register. The register service is currently running as a pilot. Landlords who wish to register an exemption for a domestic or non-domestic property as part of this pilot should e-mail the BEIS minimum standards team at PRSregisteraccess@beis.gov.uk
Under the Furniture and Furnishings (Fire)(Safety) Regulations 1988 (as amended), Landlords must be able to demonstrate that furnishings included in the property are fire resistant.
- Sofas, seat pads, bean bags
- Beds, futons, head boards, pillows
- Loose and stretch covers for furniture
- Garden furniture suitable for use indoors
- Nursery furniture
- Furniture made before 1950
- Bed linen
- Curtains Carpets.
Landlords are responsible under legislation for the maintenance of gas fittings, flues and appliances in a safe condition.
Landlords must ensure that all gas appliances and flues have an annual gas safety check. Any checks or repairs must be undertaken by a competent engineer who is on the Gas Safe Register (note: it will not be enough for an engineer to be CORGI registered).
Records of safety checks must be kept and provided to tenants. Failure to comply with the various legislation covering gas safety could result in a substantial fine and/or a custodial sentence.
Additional responsibilities are imposed on Landlords who let Houses in Multiple Occupation (HMO) occupied by at least 3 tenants who comprise more than 1 household and who share the amenities (these could also apply to a building split into bed-sits).
If the property is a large HMO (at least 3 storeys high with 5 tenants comprising more than 1 household sharing facilities), the Landlord must hold a Licence from the Council.
Licences usually last for 5 years but some councils grant them for shorter periods. The council checks that the building meets acceptable standards and the landlord is a 'fit and proper' person.
Most rented properties are low risk but nevertheless Landlords must undertake a risk assessment to determine the risk of Legionella which causes Legionnaires’ disease, a potentially fatal form of pneumonia. Everyone is susceptible to infection but the risk is increases with age and in people suffering from pre-existing health conditions.
The bacterium Legionella pneumophila are widespread in natural water systems, eg rivers and ponds, but can also be found in purpose-built water systems such as hot and cold water systems and spa pools where the water is maintained at a temperature high enough to encourage growth. If you decide that the risks are insignificant and are being properly managed to comply with the law, your assessment is complete. You will not need to take any further action, but it is important to review your assessment periodically in case anything changes in your system.
Landlords have a legal duty to ensure the property is kept in repair. This includes installations for water supply, gas and electricity and can extend to the exterior of the property in which the Landlord has an interest (eg the private driveway leading to the block of flats). Tenants do not have to report any problems so Landlords must be vigilant and take any necessary action.
An Assured Shorthold Tenancy can be brought to an end in certain circumstances by serving a prescribed notice on the Tenant. Where the Tenant has not breached any conditions of the tenancy agreement, this will be a Section 21 Notice. However there are restrictions on when a Section 21 Notice can be served, for example, it cannot be within the first 6 months of the tenancy or if the Landlord has not complied with other obligations in respect of the letting.
Landlords must check all tenants have the right to legally rent (including any occupants over 18 years who are not named on the tenancy agreement).
Landlords must check the documentary evidence of the tenants’ identity and right to remain in the presence of the tenant. Permitted documents include a passport or biometric residence permit. The checks are detailed and must be recorded.
Fines can be imposed on Landlords who cannot show they checked their right to rent and letting to someone whom they knew or had reasonable cause to know that they did not have the right to rent in the UK could lead to an unlimited fine or a custodial sentence.
For more information please visit the government website: www.gov.uk/government/collections/landlords-immigration-right-to-rent-checks.
A smoke alarm must installed on every floor of a rented property on which there is a room used wholly or partly as living accommodation (including a hall or landing). Where there are individual flats located on one floor, there must be at least one alarm within the flat itself or alternatively a communal alarm outside the flat on the same floor of the building. It is the location of an alarm which sounds which is crucial; not the positioning of detectors.
Where a room contains a solid fuel burning combustion appliance (eg wood burning stove, solid fuel Aga), the Landlord must provide a carbon monoxide alarm.
Checks must be made at the start of the tenancy to check that alarms are in working order and we recommend that checks are repeated periodically.
Local Authorities enforce the regulations and can impose a fine of up to £5,000 on Landlords who fail to comply with a remedial notice.
Landlords are recommended to fit long life non-tamper proof alarms to avoid batteries being removed and not being replaced.
Landlords may need to pay Capital Gains Tax on any gain when they sell a property which has been let. In addition, Landlords are liable to income tax on the rental income. The amount payable is dependent on their circumstances.
The rules as to which expenses can be offset against tax change from time to time (for example, changes to remove the allowance for wear and tear and the phasing out of tax relief on mortgage interest). Landlords are advised to contact their accountant or HM Revenue and Customs (HMRC) to obtain confirmation regarding available allowances.
Overseas Landlords :
- Landlords who live abroad for 6 months or more per year are classed as ‘non-resident landlords’ by HMRC even if they are a UK resident for tax purposes. Specific rules apply to overseas landlords including companies that have their offices or other place of business outside the UK, companies incorporated outside the UK; trustees; members of the HM Forces and HM Government employees.
- Landlords can apply to the HMRC to pay their tax through Self-Assessment and if approved, HMRC will notify the letting agent that they can cease to withhold tax (up to receipt of the exemption certificate, they must retain the tax).
- Landlords are recommended to contact their HM Revenue & Customs office or their accountant if they have any queries as soon as possible and preferably prior to any tenancy commencing.
For fully managed properties, Emsleys will collect and hold the deposit, as stakeholder. We shall collect a sum equivalent to 6 weeks rent but this may be subject to variation depending on circumstances and agreement by the landlord. We will register this with The Dispute Service in accordance with the Tenancy Deposit Legislation (see below).
The deposit will be returned to the tenant on written agreement by both parties as soon as possible following the check-out at the termination of the tenancy. Where disputes arise we will endeavour to be fair and equitable between the parties but it is the responsibility of both parties to reach agreement regarding the deposit and we cannot release funds to either party without such an agreement.
It is not normal practice to pay interest on monies held on behalf of Landlords and Tenants.
With our let only service, Emsleys will collect the deposit and the first month’s rent (or other agreed amount) and transfer this to the Landlord after deduction of our fee and any other out of pocket expenses. If you do not choose to use our Tenancy Deposit Scheme you will need to provide us with details of your Tenancy Deposit Scheme and membership ID prior to the Tenancy Agreement being drawn up.
Tenancy Deposit Schemes (TDS) have been compulsory for all Assured Shorthold Tenancies since 2007 to prevent landlords suffering when a tenant abandons the property after the expiry of a tenancy and to ensure the tenant received the returned deposit if there has been no damage or arrears.
All deposits must be in accordance with an authorised TDS. The Landlord must give the Tenant prescribed information within 14 days of receipt of the deposit and comply with the scheme requirements. If the deposit is paid by another person on behalf of the Tenant, eg a parent, that person must be provided with the required information in addition to the Tenant.
Failure to comply entitles the Tenant to apply to the County Court for an order for repayment of the deposit and the Court can order the Landlord to pay the Tenant a sum equal to three times the deposit. In addition, the Landlord would not be able to serve a valid section 21 Notice for Possession.
Schemes for Tenancy Deposit protection
There are two main types of deposit protection scheme: custodial schemes (Deposit Protection Service) and insured schemes (Dispute Services Tenancy and Deposit Solutions).