Do I need a solicitor for an assured shorthold tenancy agreement?
An assured shorthold tenancy agreement (often abbreviated to AST) does not have to be in writing. However, renting a property means a landlord gives a third party access to a valuable asset and takes on considerable responsibility. There are strict laws in place surrounding the rental of residential property with significant repercussions if those laws are not adhered to.
By using a specialist landlord and tenant solicitor to draft your assured shorthold tenancy you can ensure compliance with the legislation and avoid problems and expenses later.
Will the new labour government mean more changes?
The new labour government has announced it will introduce new legislation and obligations on landlords in the private rental sector. The previous conservative government made a manifesto promise before being elected in 2019 to introduce change through the Renters Reform Bill. Despite five years in power, the bill disappeared along with the previous government. We will have to wait for a new bill to proceed through parliament and see what impact this will have on assured shorthold tenancies.
At this point, the legislation remains unchanged. Landlords who are compliant with legislation, for example, the De Regulation Act 2015 and the Tenant Fees Act 2019 can still obtain possession promptly and cost-effectively using section 21 of the Housing Act.
What will a landlord and tenant solicitor do?
A specialist landlord and tenant solicitor can ensure the landlord considers matters such as:
- Energy performance certificates (EPCs)
- Gas safety
- Smoke and carbon monoxide alarms
- Electrical testing
- Fire safety
- Rent books for weekly tenancies
- Data protection and
- Checking the immigration status of tenants
Compliance with the relevant legislation will save a landlord from committing a potentially serious offence and being prosecuted by the relevant authorities. Compliance will also allow a landlord to make use of section 21 of the Housing Act (whilst we still have it).
A landlord and tenant solicitor can assist by drafting the assured shorthold tenancy to show compliance with the above legislation. For example, important information can be included within the AST and the tenant can sign a receipt to confirm the safe receipt of all the statutory documents with copies attached. The landlord can also retain a copy. Having all the documents in one place should reduce the chances of documents being lost which could save a lot of stress in the future.
What happens when landlords have not complied?
A landlord’s failure to comply with the regulations at the outset of a tenancy can have serious consequences which cannot always be rectified. The landlord in the case of Byrne v Harwood Delgado discovered this to his cost. You can read our article about this here.
A landlord’s failure to comply with the Tenant Fees Act 2019 can make a section 21 notice invalid. In addition, the landlord in breach may find the tenant submits a claim for the return of the deposit and compensation of between one and three times the deposit (for each breach).
A well-drafted assured shorthold tenancy can also help a landlord quickly and cheaply obtain possession by utilising section 8 of the Housing Act.
Advance notice of grounds for possession:
The grounds on which a landlord can claim possession under the procedure in Section 8 of the Housing act 1988 of a property let on an assured shorthold tenancy are set out in Schedule 2 to the Housing Act 1988.
To rely on grounds 1 to 5, the landlord must give the tenant written notice before the tenancy is entered, that it may in the future wish to regain possession of the property under one of those grounds. A carefully drafted assured shorthold tenancy may include any relevant notice to the tenant. Grounds 1 to 5 give a mandatory right to possession. The court has the power to dispense with the notice requirement in relation to grounds 1 and 2 if it considers it just and equitable to do so, however proving this point will add to the cost, time and risk of the litigation.
The above grounds can be a useful route to possession in addition to the often-used grounds under section 8 for rent areas and anti-social behaviour.
Other considerations:
A specialist landlord and tenant solicitor can also consider the impact of an assured shorthold tenancy agreement in the following areas:
- Consumer Rights Act 2015:
The Consumer Rights Act 2015 (CRA 2015) applies to contracts entered on or after 1 October 2015 where the landlord is acting in the course of a business and the tenant is a natural person acting outside the course of the tenant’s business. The CRA 2015 also partially amends the Unfair Contract Terms Act 1977 (UCTA 1977) so that the rules relating to consumer contracts entered into on or after 1 October 2015 move into the CRA 2015. In addition to considering whether a term is unfair, regard must be given to the TFA 2019, which prohibits a landlord from requiring a tenant to make any payments other than expressly “permitted payments”. - The Family Law Act 1996 (FLA 1996):
This gives certain rights to occupy to a spouse or civil partner who does not have a legal or beneficial interest in the home. - The Court of Protection:
The CoP has published guidance for a landlord making an application to the court for authority to sign or terminate an assured shorthold tenancy agreement on behalf of an adult who lacks mental capacity. - Stamp Duty Land Tax (SDLT):
This may be payable on an assured shorthold tenancy granted in England if a premium is payable or the net present value of the lease exceeds the nil rate band threshold.
As hopefully demonstrated in this article, obtaining legal advice early on will save costs later. This is especially so if the landlord wants to obtain possession and makes an application to the court for an order for possession.
If you are a landlord looking for a specialist landlord and tenant solicitor, or advice on an assured shorthold tenancy, then GA’s specialist residential repossession team is here to help.
Call the team today on 01752 203500 or email me, a specialist landlord and tenant solicitor, directly via neale.crump@GAsolicitors.com.
GA Solicitors in Plymouth is ranked in The Legal 500, Chambers UK, Chambers High Net Worth and The Legal 500 Green Guide.
Read our guide about retaining tenant’s deposits here.
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