Autumn Statement 2015 – What it means for landlords

Yesterday’s Autumn Statement from the Chancellor of the Exchequer contained some unexpected tax changes that stand to make it harder for small investors to enter the Private Rented Sector as landlords. From April next year, the Government is to introduce new rates of stamp duty for buy-to-let properties and second home purchases, set 3% above the rate for first home purchases.

On a buy-to-let property costing £180,000, stamp duty will be £6,500, whereas under current rules it would add a mere £1,100 to the purchase costs. The new rate applies to all second home purchases, not just buy-to-lets, so investors can’t just purchase a house for personal use and convert it to a rental property at a later date.

The new stamp duty rules, combined with recent increased regulation and tax relief changes for wear and tear replacement and buy-to-let mortgages, suggest that the Government intends to restrict the role of private investors in the PRS, and there is a real risk that landlords feeling the squeeze may exit the market. It’s interesting to note that the higher stamp duty rates will not apply to corporate entities or funds making significant investments in residential property, which indicates the Government is seeking to shift towards a more institutionally managed Private Rented Sector. The Government plans to consult on the policy detail, including on whether an exemption for corporate entities and funds owning more than 15 residential properties is appropriate.

The Government intends to use some of income generated by the increased duty to inject £60 million into the affordable housing budget for communities in England where the impact of second homes has had a particular impact, to help first time buyers get on the housing ladder. It’s not clear how an area will qualify as impacted by second home ownership, nor if new affordable housing can be created in these locations.  

There’s also little indication that the funds generated by the changes will be used to increase the provision of affordable renting. In fact, the statement announces that a pilot to extend right-to-buy to Housing Association tenants will commence shortly with five associations, further reducing the availability of social housing, with the expectation that the Private Rented Sector will absorb the strain.

Many commentators are already decrying the Chancellor’s changes, suggesting that they will in effect choke off investment in the PRS, but it remains to be seen how they will alter the make-up of the market and the type of investors operating in this sector.

New Deregulation Act rules come into force

Earlier this year, the Deregulation Act 2015 introduced changes to tenancy deposit protection law to resolve issues raised by the Superstrike Ltd vs Rodriguez case in 2013. The Deregulation Act also contained a number of new requirements for landlords which come into force today (1 October 2015). As part of our commitment to helping you keep abreast of changes to the Private Rented Sector, we’ve summarised the changes for you here.

Changes to eviction procedure

Where a landlord has failed to address a tenant’s complaint about the condition of the property they’re renting, and the local authority has both verified the complaint and served either an improvement notice or a notice of emergency remedial action, the landlord can’t evict the tenant for 6 months, and must also complete the repairs demanded by the local authority notice. By introducing this law, the Government hopes to protect tenants against retaliatory evictions.

The Act also introduces changes to simplify the process of eviction for landlords in cases where it’s justified. A new form has been introduced for use when applying to court for a ‘no-fault’ (section 21) eviction, and is designed to reduce the likelihood of cases being thrown out on technical errors which lead to increased costs, lost time and inconvenience for landlords. The form must be used for all tenancies starting on or after 1 October 2015. Use for tenancies starting before this date is optional but encouraged. You can find the form in the snappily titled document The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 No. 1725, which can be accessed here.

There are also some additional new rules on evictions and the information which must be provided to tenants before landlords can start the eviction process. More detail on these will be available in guidance available on the Government website from today (1 October 2015). 

Smoke and Carbon Monoxide Alarm Regulations

To reduce the risk of fire or carbon monoxide poisoning to tenants, Parliament has approved new regulations, meaning from today, 1 October 2015, private sector landlords will need to have installed at least one smoke alarm on every storey of their properties, and a carbon monoxide alarm in any room containing a solid fuel burning appliance such as a coal fire or wood burning stove. This applies to all tenancies, not just those starting on or after 1 October. Landlords must ensure the alarms are in working order at the start of each new tenancy. It has been suggested that they’ll even need to have them tested on the  day tenancy begins, to properly ensure they are in working order, rather than a few days before. An alarm failure in the intervening days between the test and the tenancy commencing could result in a breach and the potential for a large fine to be imposed. To find out more, download the Government’s explanatory booklet for landlords.

The Government will be updating their ‘How to rent’ guide to reflect the changes that have now come into force, helping to  ensure both landlords and tenants are clear on their key rights and responsibilities and improve standards in the private rented sector.

Government Proposals Could Mean Big Changes for Private Rented Sector Landlords

During recent weeks, the Government has proposed a number of changes to legislation, each of which is expected to have a significant impact on landlords in the Private Rented Sector .

The lettings industry is coming under ever greater scrutiny. This added attention is generating a wide range of viewpoints from many commentators, and in many cases, dividing opinion. In this post, we explain each proposal in turn, and discuss the implications each would have.

Tougher Punishments for Rogue Landlords

The Department for Communities and Local Government (DCLG), recently invited input from the PRS on new proposals that will make it harder for rogue landlords to operate.

It must be stressed that, whilst rogue landlords make up a very small percentage, they have a large effect on public opinion, and damage the reputation of good landlords everywhere.

The DCLG ’s recent discussion paper was clear -  they want to do more to drive rogue landlords out of the industry - and it included a variety of ways that may help achieve this, such as fines for offenders and the possible introduction of a blacklist and bans for repeat offenders. 

It also explored the use of rent repayment orders, civil penalties and other ways to weed out the rogues, including fit and proper person tests. While these tests already exist, the document proposes making them stricter and less open to interpretation.

We’re really pleased to see the DCLG reaching out to gain the views, insight and experiences of landlords and agents. It’s clear from the discussions and feedback we’ve had, that many of you welcome these steps, providing they don’t result in more red tape. We look forward to seeing the outcome of the consultation later this year.

We also recently surveyed landlords registered with us asking for their opinions on the government consultation, and we’re currently analysing the results. We’ll share our findings with you soon.

Big Changes to Tax Relief

In his recent budget, the Chancellor announced a shake-up of the tax relief rules landlords can currently take advantage of. The capping of buy-to-let mortgage tax relief to the basic 20% tax rate has divided opinion, with many people suggesting it will price landlords out of the market and ultimately drive rents up.

Others, however, have suggested that it levels the field of landlord taxation with homeowners who can’t claim tax relief on their mortgage repayments, making it fairer for everybody.

Then there are some who claim that landlords should treat the renting of their property as a business rather than simply as an investment, and should, therefore, be taxed accordingly. 

Much of the discussion rests on whether landlords view buying a property to let as a way to get more money coming in every month, or whether they see it as a long-term investment, relying on the house to increase in value over time.

Wear and Tear - Consultation

Another area where tax relief changes have been proposed is for wear and tear of furniture and fittings.

Currently, landlords can claim a wear and tear allowance of 10% of rent received, regardless of the level of costs incurred. This means some landlords gain relief where no expenditure has been made, whilst others spending above the 10% level are limited on the relief they can claim. It’s also restricted to fully furnished properties only.

The new proposals will allow all residential landlords (with the exception of those providing furnished holiday lets) to claim a deduction for the cost of replacing furniture, furnishings, appliances and kitchenware provided for the tenant’s use. 

It is important to note that this tax relief is strictly for the replacement of existing furniture and fittings and not for furnishing a property in the first place.

If you’d like to make sure your voice is heard, HMRC are currently running a consultation on the proposals until 9th October 2015. You can view the consultation here.

Right to Rent to go Nationwide

Another recent announcement is the plan to roll out nationally the responsibility for landlords and letting agents to perform ‘right-to-rent’ checks, to ensure the tenant has a right to be in the country. The idea has been trialled in the West Midlands, and whilst the full results have yet to be released, the Government have decided that they will press ahead with expanding the scheme to the rest of the UK.

It’s certainly an intriguing time for the Private Rented Sector and we expect more changes to be proposed. There’s still much discussion and debate to be had about all of these topics, and we expect there to be further changes to the proposals. We’ll be following them closely to see how they develop.

Big changes for landlords and letting agents in Wales

As you may have read, The Housing (Wales) Act 2014 has been enacted by the Welsh Assembly to allow a greater level of control over the housing market. 

Some of the new legislation is due to launch in autumn this year, and from even the quickest of scan-reads, it’s clear to see that it will have a huge impact on landlords and agents.

The proposed changes include the creation of standardised ‘model’ tenancy contracts, but the biggest change will be the introduction of compulsory licensing for landlords and letting agents for both the letting and management of tenanted properties. 

The new licensing scheme will operate as ‘Rent Smart Wales’, with Cardiff County Council appointed to act as the primary registration authority.

What does this mean for agents?

Under the current proposal, to obtain a licence agents will be required to pass a ‘Fit and Proper Person’ (FPP) test, the details of which are still being agreed. Without a licence, agents will not be able to undertake any letting activity including collection of rent, viewings or management. The licence requirement will extend to ‘tenant find only’ agents, though online agents may be exempt from the legislation.

It’s unclear at this point as to which agency representatives will be required to pass the FPP. However, initial indications are that anyone owning 25% or more of the lettings company will have to pass it. This will become clear when the scheme rules are released.

What does this mean for landlords?

The proposed changes for landlord registration will require landlords to register and pay fees to gain a licence for every property they let. Licences are expected to last for five years, at which point they can be renewed upon payment of another fee. Charges have yet to be decided, though to keep fees down, it’s expected that registration will be a short online process, capturing information about both the landlord and the property.  

If a landlord does not obtain a licence to manage a property, they will be committing an offence - unless they appoint a licensed letting agent to manage it on their behalf. It will be an offence to appoint an unlicensed agent.

Developing a Code of Practice

Some additional conditions are being introduced for agents and landlords applying for a licence. Recently the Welsh Government consulted with Welsh industry about the development of a ‘Code of Practice’ which would need to be adopted and adhered to as a condition of having a licence. Failure to meet the conditions of the code could result in both the licence being revoked and a potentially unlimited fine.

If introduced, the code may also state that landlords and agents will have to undertake mandatory training, though it’s not yet clear what the training would cover.

Licensing is expected to commence in autumn this year. Enforcement is likely to start in late 2016 or early 2017, in order to allow agents and landlords time to comply with the law. The Welsh Government has now launched the Rent Smart Wales website, where agents and landlords will soon be able to find out more and apply for a letting and management licence.

Changes to tenancy deposit protection from 6th April 2012

The Localism Act achieved Royal Assent in December and the DCLG has now confirmed that changes to tenancy deposit protection, introduced by the Bill, will come into force on 6th April. Tenancies already in place on this date will have 30 days in which to comply with the new rules. Here’s a recap of the changes due to take effect as a result of The Localism Act:

30 days – not 14 – to protect deposits

From 6th April, landlords and letting agents have 30 days from receipt of deposit in which to protect it.

The re-wording and extension of this timeline also closes the loophole with regards to deposit protection deadlines that was highlighted by cases such as Universal Estates v Tiensia in 2010.

Now, if a deposit is not protected within 30 days, the tenant can take their landlord or letting agent to court – there is no other way to interpret this legislation.

Prescribed Information

The requirement for providing the Prescribed Information to the tenant will also be changed to within 30 days of receipt of the deposit.

Whilst we provide a template for Prescribed Information on our website, it is the landlord or letting agent’s responsibility to ensure it is issued at the correct times so it’s vital they review the Localism Act and understand when Prescribed Information should be issued.

No retrospective protection after the tenancy ends

If a tenant makes an application to the county court once the tenancy has ended, the landlord will no longer be able to retrospectively protect the deposit in order to comply with the Act. If the tenancy has ended, the only option is for the landlord to repay the deposit, or part thereof, to the tenant.

Revised sanctions for non protection

The changes give the courts discretion to award not less than the amount of the deposit and not more than three times that amount depending on the individual case. For example, a repeat offender may find themselves with a larger fine compared to a landlord who has simply forgotten to protect as  an administrative oversight.

Section 21 notices

Further clarity to Section 215 of the Housing Act highlights that a section 21 notice may not be given where a deposit has not been protected within the 30 day period. However, there are exceptions to this which you can view in The Localism Act.

For a comprehensive explanation of each change, read our blog from September 2011 – ‘Tenancy deposit protection amendments proposed by the Localism Bill’. You can also read the The Localism Act (section 184) and view the amendments against the Housing Act 2004 (sections 213 – 215 are relevant).

Kevin Winchester shares his approach to avoiding deposit disputes

[caption id="attachment_886" align="alignright" width="200" caption="Kevin Winchester, MD of Winchester Lettings"][/caption] Since the law regarding deposits paid by tenants to landlords or lettings agents changed in April 2007, disputes over the deposit have been a common problem at the end of the tenancy. For example, the landlord will say the tenant has damaged something and the tenant will say it was like it when they moved in.

I can thankfully say that we’ve been one of the few agents that haven’t had this problem and below are some of the reasons why we never really get disputes.

First and foremost, we produce a very detailed check-in inventory and schedule of condition. The more time taken compiling one the better, with date and time stamped photos preferably as these can be used to show a very real portrayal of how the property was handed to a tenant. If the property is professionally cleaned beforehand keep the receipt and add a copy of it to the inventory. Both the landlord / agent / check-in clerk and tenant should mutually agree that the inventory is accurate. I’ve seen some pretty basic inventories in my time and it’s this type that is open to being ambiguous.

Don’t rely on a very tight tenancy agreement with clauses about cleaning etc. as these types of clauses can be deemed unfair – see the Office of Fair Trading website regarding unfair tenancy terms.

Carry out regular inspections on your properties; mark my words if you never make any inspections you may end up getting a shock when they leave. I’d suggest a visit once a quarter as a minimum - ideally on different dates and times – and take a camera to log any damage caused; it’s a great way of ensuring your tenants are looking after the property and if anything is of concern it can be nipped in the bud straight away.

If you have to provide maintenance to a rented property don’t ignore it as these problems will get worse over time and cause more damage to your property. Landlords have to comply with the statutory repair obligations in section 11 of the Landlord and Tenant Act 1985, and if you get work done promptly then a tenant will be a lot more conscious that you like to keep things nice.

When you receive notice from your tenant that he/she intends to vacate, send them a letter prior to check-out advising them of your expectations and arrangements for key handover and final meter readings. We always add instructions for things like cleaning and gardening to this letter to highlight what we expect to be done prior to the meeting. We also send a copy of the check-in inventory for the tenant to refer to.

A couple of days before the check-out meeting make another inspection; this is your chance to assess any potential problems you could face at the exit meeting. Again take photos and document what you see.

The check-out meeting should be conducted using the agreed check-in inventory and it’s at this point that you’ll need to assess what is genuine wear and tear or what is actual damage - if there is any!

If you need advice on what is considered fair wear and tear then I suggest you buy 'A Guide to Best Practice for Inventory Providers’ which you can get from The Association of Professional Inventory Providers. If you’re not a member of a professional body it will cost you around £100.00 which is a worthwhile investment – we refer to it all the time!

If there is a dilapidation that needs to be addresses, try making an agreement with your tenant there and then and discuss the likely cost to rectify. For instance, if the property has not been cleaned but you had the property professionally cleaned prior to them moving in, refer to the receipt in the inventory as the cost is already there.

If you need to get quotes for any work then aim to get at least 3 so you can show due diligence in obtaining the best contractor. It’s also a requirement if you decide to use an ADR service.

Finally, always try to come to an amicable agreement regarding the repayment of a tenant’s deposit: remember the golden rule - ‘the burden of proof lies with the landlord'.

Kevin is Managing Director of Winchester Lettings Group – based in Bromley, Kent – a dedicated property lettings specialist that deals with every aspect of residential lettings and property rental management.

These opinions are those of the writer and not necessarily those of The Deposit Protection Service.

DPS operating company has applied to protect tenancy deposits in Scotland

As you may know, the Scottish Government is introducing legislation that will make it compulsory for all landlords and letting agents in Scotland who take deposits for a relevant tenancy to protect them with a Government approved tenancy deposit scheme. Unlike England and Wales, there won’t be any insurance-based schemes to protect Scottish tenancy deposits. Approved providers will operate custodial schemes – like The DPS – where the money is handed over to the scheme to protect for the duration of the tenancy.

The LPS Scotland – run by the same company as The DPS – has submitted an application to run a scheme and, once approved by the Scottish Government, will be the only provider in Scotland with any experience of running a custodial tenancy deposit protection scheme.

There are some differences in the Scottish requirements to those in England and Wales which we’ll be looking to communicate with our landlords and letting agents with properties in Scotland very soon.

I’m also giving a presentation on 9th November in Edinburgh to introduce the legislation, what it will mean for landlords, letting agents and tenants and how The LPS Scotland will work once approved.

I’ll also talk about our experience of running the DPS in England and Wales and how that knowledge will benefit the running of The LPS Scotland.

If you’re a registered DPS landlord or letting agent with property in Scotland why not come along to find out how it will affect you - email The LPS Scotland to register your interest.

To find out more about The LPS Scotland, visit the website or read the latest blog post:

The Letting Protection Service Scotland (The LPS Scotland) prepares to protect tenancy deposits

You can also follow them on Twitter (@LPS_Scotland).

Tenancy deposit protection amendments proposed by the Localism Bill

At our ADR workshop in Leeds last week I was interested to learn that some of the attendees weren’t aware of the changes proposed by the Localism Bill that will affect tenancy deposit protection under the Housing Act 2004 (the Act). With that in mind I thought it would be useful to summarise them here:

30 days – not 14 – to protect deposits and issue Prescribed Information

Currently the Housing Act requires that landlords/letting agents protect a tenant’s deposit within 14 days from the day it is received – the Localism Bill has proposed that this be amended to 30 days. This will remove landlord’s/agents’ ability to rely on ‘administrative oversight’ for any delay in protection.

The requirement for providing the Prescribed Information to the tenant will also be changed to within 30 days of receipt of the deposit.

Closing the loophole

Following high profile court cases – like Universal Estates v Tiensia late last year – the Localism Bill has proposed a change that will close the loophole regarding the ‘initial requirements’.

Rather than it being mandatory to comply with the ‘initial requirements’ of a tenancy deposit scheme, the proposed change will give tenants the ability to approach a county court to enforce compliance by a landlord with its obligation to protect the deposit and supply the Prescribed Information – where this has not been done – within 30 days of receipt of the deposit.

Protection after the tenancy has ended

If a tenant makes an application to the county court once the tenancy has ended, the landlord will no longer be able to retrospectively protect the deposit in order to comply with the Act.

Currently the courts can order either the repayment of the deposit to the tenant, or the immediate protection of the deposit with a custodial scheme. A new proposed subsection to the Act will ensure that if the tenancy has ended, the only option is for the landlord to repay the deposit, or part thereof, to the tenant.

Revised sanctions for non protection

Currently, if a landlord is required to pay a fine to the tenant for failing to comply with the Act, then the judge has to award three times the amount of the deposit. Under the new proposals the Judge will have discretion to award not less than the amount of the deposit and not more than three times that amount.

Section 21 notices

Section 215 of the Housing Act will also be amended to provide clarity that a section 21 notice may not be given where a deposit has not been protected within the 30 day period under section 213(3) or (6), however this prohibition may be mitigated where:

  • the deposit has been returned to the tenant in full or with such deductions as have been agreed;
  • an application to the county court under section 214 has been made and has been determined by the court or withdrawn or settled between the parties.

The above changes are awaiting Royal Assent; if they’re passed they will come into force in April 2012. We’ll keep you updated on the progress of the Bill and if passed we’ll let you know of any enhancements we’ll implement to stay ahead of the changes.

To familiarise yourselves further with the proposed changes, have a look at the Localism Bill (section 171) and view the amendments against the Housing Act 2004 (sections 213 – 215 are relevant).