Residential Assured Shorthold Tenancies
Almost all residential tenancies are now what is known as Assured Shorthold Tenancies. The reason for this is that in 1997 all tenancies created were deemed to be Assured Shorthold Tenancies unless the Landlord gave Notice that the tenancy was not to be an Assured Shorthold tenancy.
For a Landlord the advantage of a Shorthold tenancy is that possession can be obtained of the property six months after the tenancy has begun. However, the Landlord must give two months notice to the tenant to regain possession.
The advantage for the Landlord is that provided the tenancy has been created properly the Landlord can gain possession back provided notice has been given to the tenant in the correct form.
The difficulty here is that the timing of the notice and its content are vital to the validity of any notice given. Many of the Tenancy Agreements created also have errors within them, for example, the tenancy must be for a period of six months and often the period calculated and entered into the Tenancy Agreement is incorrect.
We have also seen examples ourselves where the Tenancy has not been dated or properly signed, or the details in connection with the rent have been incorrectly completed.
The Tenancy does not have to be in writing but it is advisable that it is created in this way. Whilst the Landlord would still be able to gain possession of the property he will not be able to use what is known as the Accelerated Possession Procedure (which provides a quick and easy method of getting the property back without the need for anyone attending Court) and the application will have to be heard in an Open Court with at least the Landlord attending.
A tenancy is normally for a period of not less than six months. However, the Landlord can agree a shorter period of time for the tenancy but the tenant is permitted to remain in the property and the Landlord does not have a guaranteed right to possession if the tenant refuses to leave in the first six months of the tenancy.
The charging of a deposit by the Landlord is now regulated under the Tenancy Deposit Protection Legislation introduced in 2004. Landlords are required to protect the deposits for all Assured Shorthold Tenancies for any tenancy created after the 6th April 2007 in a Government approved scheme. There are currently three authorised Tenancy Deposit Schemes, two are insurance based and the third is what is known as custodial. All three schemes provide a free dispute resolution service in the event of a dispute about the return of the deposit.
If you have a property subject to a mortgage, or you hold the property in a long Lease it is essential you get your mortgage lenders agreement to Let the property before you do so. You should also check with your Insurers whether your Building Insurance Policy provides cover if the property is Let and make arrangements to amend cover if it does not.
Landlord and Tenant Responsibilities and Rights
What is the Landlord Responsible for? :
Unless the Tenancy has a fixed term of more than 7 years the Landlord is responsible for:
· The structure and exterior of the property
· Baths, sinks, basins and other sanitary installation
· Heating and water installation
· If you are renting a flat or maisonette other parts of the building where there are installations in it which you own or control and whose disrepair would affect a tenant
Responsibility for other repairs depends on what you have agreed with the tenant.
The Landlord is not responsible for repairing damage caused by the tenant.
The Landlord is also liable for the Gas Safety Regulations to ensure the gas supply is maintained in good order and an annual safety check is carried out by a recognised engineer (i.e. one that is approved under the Gas Safety Regulations). You must keep a record of all the safety checks and issue it to the tenant within 28 days of each annual check. The Landlord is not responsible for maintaining gas appliances which the tenant is entitled to take with them at the end of the Letting.
The Landlord is to ensure that the electrical systems and any electrical appliances such as cookers, kettles, toasters, washing machines and immersion heaters are safe to use.
The Landlord is also responsible for any furniture and furnishings that are supplied meet fire resistance requirements.
What is the Tenant responsible for?
Normally the tenant is responsible for paying the Council Tax, however, if the house is multiple occupation the Landlord would normally be responsible for paying it, although the Landlord can include the cost in the rent.
The tenant will also be responsible for paying water and sewerage charges if the accommodation is self contained.
The Landlord and Tenant should agree with each other in relation to any other bills by way of a written agreement who is to be responsible for payment in the Tenancy Agreement.
The Landlord is also responsible for obtaining an Energy Performance Certificate where a property is Let to a new tenant. This shows the tenant the energy performance of the building they are planning to occupy.
When a tenancy comes to an end, if a tenant does not leave the premises the Landlord must apply for a Court Order normally by the Assured Shorthold accelerated procedure. If the tenant does not leave when the end of the two month notice period then it is necessary to apply for an Order for possession of the premises by means of a Court Order.
It is possible to apply to get the property back during a fixed term of a Shorthold tenancy but generally speaking the tenant has had to breach the tenancy by normally not paying the rent or letting the property go into disrepair or creating a nuisance.
Can the Tenant leave during the Tenancy?
If the tenant has a fixed term tenancy but wants to move out before the end of term that can only be done if the Landlord agrees that you can leave early, or if it is allowed by the use of a “break clause” in a Tenancy Agreement and have followed any requirements for giving notice specified in the Tenancy Agreement.
If the Agreement does not allow you to leave early and the Landlord does not agree that you can break the Agreement you will be contractually obliged to pay the rent for the entire length of the fixed term. However, this does not mean that the Landlord should necessarily be able to claim the whole of the terms rent if you leave early as there is a responsibility on the Landlord in this situation to try and cover his or her losses in other ways mainly by trying to re-Let the accommodation.