Our users tell us that one of their main worries as landlords is to stay on top of their legal responsibilities. We wanted to help, so we’ve asked Tessa Shepperson at Landlord Law Services to come to the rescue with a “how to rent checklist”.
The result is the “Landlord duties” series, five articles to provide guidance for landlords at different stages of their tenancy. Each article is an abbreviated version of the content available on Landlord Law Services: if you want to delve deeper, you can access the full content by signing up to their service.
This fourth article is about how to manage a tenancy.
After the keys have been handed over to your tenants and they have moved in, perhaps the most important thing to note is that landlords need to leave tenants alone.
One of the most fundamental rights that tenants have is under what is, rather misleading, called the ‘covenant of quiet enjoyment’. This does not mean that the property must be quiet or that tenants have the right to enjoy themselves. It means that the tenants must be left to live in the property in peace without interference from the landlord.
In fact, under the covenant of quiet enjoyment, the tenant has the legal right to exclude everyone – including the landlord – from the property. Apart from special situations such as police officers with a search warrant.
Many landlords totally fail to understand this and think that as the property is ‘theirs’ they have the right to go in and out as they like to manage the tenancy. However this is not the case – if you enter the property, for example with your keys, when the tenants are not there, then unless they have expressly given you permission to do this, it will be trespass and may also be considered harassment which is a criminal offence.
Depending on the circumstances, tenants may be able to claim compensation and apply to court for an injunction ordering you to keep out.
Now you may be thinking “but surely I have the right to go in and do inspections and arrange for gas safety certificates?” You may also be wondering how this fits in with section 11(6) of the Landlord & Tenant Act 1985 which gives landlords the right of access to view a property’s condition and state of repair on 24 hours written notice.
Landlords do have these rights, under statute and maybe also under the terms of their tenancy agreement. However, they are subject to the tenants right, under the covenant of quiet enjoyment, to refuse to allow you in.
The two rights are in conflict – but the tenant’s rights (as the person in actual occupation) trump the landlord’s rights. What this means is that the tenant has the right to stop the landlord going into the property – but this will put him (or her) in breach of contract.
Hopefully this will not happen with your tenancy, but you do need to be careful with your dealings with your tenants.
I would suggest that as a general rule:
You do not visit the property unannounced;
You always provide at least 24 hours written notice of any visits. Ideally, the notice period should be much longer than this;
You never, ever, use your keys to enter the property when the tenant is not there unless this has been specifically agreed with the tenants (ideally in writing, e.g. by an exchange of emails);
Save for agreed inspection visits you only visit the property at the tenant’s invitation;
If relations between you and the tenants deteriorate for any reason you should be even more careful not to visit without an invitation and should deal with all communication in writing.
Access to shared areas
The situation is somewhat different if the property is a shared property where tenants have their own room and shared use of the common parts.
Here, the tenants’ rights under the covenant of quiet enjoyment will only apply to their own room – meaning that you can access the common parts without their permission. For example, to do repairs, show new tenants around vacant rooms, carry out inspections or to do other tasks related to your landlord obligations.
However, in these COVID-19 times, you will always need to follow the guidelines, which include social distancing, masks and handwashing, as set out in the government guidance.
Let’s now turn to the things which landlords will need to do to manage the tenancy, starting with two things you need to do right at the start:
Deal with promises made to tenants
If your tenants have rented your property on the understanding that you will carry out certain repairs or do other work or provide certain items – you should if at all possible make sure that this is done in a timely fashion, ideally within the first month.
Otherwise, if you are an agent, tenants can complain about you to their Property Redress Scheme and in some circumstances tenants will be able to cancel the contract and obtain a full refund under their rights to ‘rewind’ the tenancy under the Consumer Rights Act 2015.
Carry out your first inspection visit
Ideally this should be during the first month and will give you an opportunity to check that your tenants have settled in and that there are no problems.
Here is a non-exhaustive list of the other things you may need to do during the tenancy:
Carry out regular inspections
Although COVID-19 has made inspections more difficult, it has not removed the need for them. So, whilst making sure that you put safety first and respect the guidelines about social distancing, you’ll still need to stay on top of responsibilities of private landlords and check:
Whether there’s any repair work which needs to be done;
Whether there are any unauthorised occupants living at the property which could turn your property into an HMO. This in turn could:
make you vulnerable to penalties, if you do not have an HMO license
put you in breach of any HMO license you may have if this limits the number of occupiers
That the tenants are not carrying on any illegal activity (such as, for example, turning all or part of the property into a cannabis farm).
Landlords often fail to realise how important regular inspections are, particularly if your property is an HMO.
You should also note that many insurance companies now require landlords to carry out inspections every three or six months, as a condition under your insurance policy and they may refuse to accept claims if this has not been done.
You will also need to do Gas Safety Inspections every 12 months.
Right to rent checks
If your tenants right to rent was time-limited, you will need to carry out a further check at the end of their permitted time.
Check that the rent is paid
This is not a landlord legal obligation per se, but it is really important. If your tenants miss a payment your chances of recovery are much better if you contact the tenants immediately rather than allowing the arrears to build.
Your Hammock account will help you here as you will be notified automatically if payment is not made.
Apart from this there is little you need to do during a tenancy unless problems arise.
The problems which can arise
Rent arrears – as discussed above, you need to deal with this promptly. There is a Rent Arrears Action Plan which can help with this as part of the Landlord Law membership. Hammock will keep a real-time balance of arrears for each tenant and property, with a clear view of which payments are missing or partial;
Repair works – make sure these are done promptly and be sure to write to tenants when they have been completed asking them to confirm that they are happy with what has been done;
One or more of joint tenants wanting to move out early – there is a Changing Tenants Kit (available to Landlord Law members as part of their membership) which can help with this;
Tenants refusing access for inspections – again there is guidance for landlords on what to do and draft letters to send, as part of the Landlord Law content;
Tenants just moving out – this can happen, for example if tenants can’t afford the rent. You need to be careful however about changing the locks. There is a lot of content on this on Landlord Law;
If the tenant dies – this kind of event causes distress at many levels, but for the purposes of this article, note that the tenant dying does not, of itself, end the tenancy. There is a procedure to follow which, again, is discussed as part of the Landlord Law content.
Towards the end of the tenancy, you will need to consider whether you want the tenants to remain or whether you will want them to leave.