The Government has issued detailed guidance for the private rented sector to consolidate the various regulations that have changed, and guidance that has been given, in the last weeks.
The measures set out in the guidance are in force until the end of September, but can be extended if necessary
At HF Assist, we are continuing to monitor things closely and bring the latest news and guidance as soon as we receive it. In this latest update we cover:
- changes to the eligibility criteria of the Coronavirus Job Retention Scheme
- the latest position on EPCs
- changes to Right to Rent checks
- updated guidance on moving home during the pandemic
- the latest recommendations for property inspections, maintenance and repairs
- the changes to evictions and possession proceedings set out in the Coronavirus Bill
- details of the Government help available for businesses
In the meantime, you can follow these links to find more detailed guidance on what the ‘lockdown’ means:
Coronavirus job retention scheme
The Government has amended the eligibility criteria of the Coronavirus Job Retention Scheme so that commission payments can be included in claims for Furloughed Pay.
The clarification states that employers will be able to claim for any regular payments that they are obliged to pay employees including:
- Past overtime
- Compulsory commission payments
N.B. Discretionary bonuses and commission payments however, and non-cash payments cannot be included.
Energy Performance Certificates
The Government has confirmed that the legal requirement to obtain an Energy Performance Certificate (EPC) before selling or letting a property will remain in place despite the coronavirus outbreak.
The latest guidance advises that:
- EPC assessments can continue in cases where properties are vacant
- where a property is occupied, the Government recommends delaying the transaction so that an EPC assessment can proceed when stay-at-home measures are removed
- if moving is unavoidable, an agreement to delay cannot be reached or there is no valid in place, an assessment can be carried out provided the assessor follows Government guidelines on maintaining a two-metre distance from any household occupants
- no assessments should take place if any person in the property is showing symptoms, self-isolating or being shielded.
Right to Rent checks
Changes to the Right to Rent scheme have been introduced, effective now, to make it easier for landlords to carry out checks on prospective tenants during the Coronavirus outbreak.
These temporary changes mean that the Home Office will not require landlords to see original documents and will allow checks to be undertaken over video calls. This means that prospective tenants can now provide scanned documents, rather than originals, to show they have a right to rent or right to work.
To carry out a right to rent check under the temporary coronavirus measures, you will need to:
- Ask the tenant to submit a scanned copy or a photo of their original documents by email or using a mobile app.
- Arrange a video call with the tenant and ask them to hold up the original documents to the camera and check them against the digital copy they supplied of the documents.
- Record the date you made the check and mark it as “an adjusted check has been undertaken on [insert date] due to COVID-19”.
Checks are still needed - it remains an offence to knowingly employ or let property to anyone who does not have legal immigration status in the UK. If a prospective or existing tenant cannot provide any of the prescribed documents, the landlord or employer should use the Landlord Checking Service or Employer Checking Service.
Once the temporary changes end, landlords must complete full checks on existing tenants who rented a property or started work during the outbreak, and keep records. Retrospective checks must be:
- Marked as: “the individual’s tenancy agreement commenced on [insert date]. The prescribed right to rent check was undertaken on [insert date] due to COVID-19.”
- Carried out within 8 weeks of the COVID-19 measures ending.
The government has now issued guidance on moving into a new home during the COVID-19 pandemic – although written for buyers and sellers, the guidance also applies to renting.
In short, the Government has strongly advised that home movers should stay put unless for contractual reasons a property rental or sale must proceed and neither side can agree to delay.
Therefore, as long as the two meter rule and other public health guidance is followed, there is no problem handing over keys. There is also no problem with an inventory clerk doing a check-in as long as the two metre rule is applied (even better, can the inventory can be done by the clerk on their own?).
Property inspections, maintenance and repairs
The Gas Safe Register website says “In the event you are unable to gain access to the property, e.g. persistent refusal of access due to vulnerable tenants self-isolating, you will be expected to be able to demonstrate that you took reasonable steps to comply with the law. This will need to include records of communication with the tenant and details of your engineers attempts to gain access.”
Gas safety inspections can still be completed, but only with the express consent of both engineer and tenants (the Government guidelines permit travel to and from work where it cannot be done from home). Engineers must take sensible precautions, based on government guidance:
- Use personal protective equipment, frequent handwashing with soap or use of alcohol hand sanitising gel.
- When visiting a property, confirm before entering whether anyone is anyone is self-isolating, or has been in contact with anyone who has been diagnosed with Coronavirus or has recently gone into self-isolation.
- If the answer is ‘yes’, cancel the inspection and reschedule for a later date.
- If the engineer visiting a property feels in any way uncomfortable with the situation, they can withdraw from the inspection and reschedule for a later date.
If access cannot be obtained, make sure that you document what steps were taken to attempt to complete the gas safety inspection. HSE guidance indicates that at least three attempts to complete the gas safety check should be made, but this will depend on the circumstances you face (see below). Where an inspection is delayed, be sure to complete it as soon as possible after the lock down period ends.
Tenants who are self-isolating: if a tenant tells you they are self-isolating after displaying symptoms the inspection should be postponed for a minimum of 7 days (if they live alone) or 14 days (if there is more than person in the household) from when they started self-isolating. Check the Government stay at home guidance as it may change.
Tenants shielding themselves from the community: If a tenant tells you they have been told to "shield" themselves as they are at a very serious risk, postpone the inspection until after the 12 week period.
HMO electrical safety certificates: the advice here is the same as for gas safety. Make reasonable attempts to gain access to complete the certificate; where delayed complete the certificate as soon as possible after the lockdown. The same principles for self-isolation and shielding (see above) also apply.
Routine electrical inspections: if you carry these out although not legally required to do so, they are not essential and can be put on hold during the lockdown.
PAT testing is not a legal requirement and can also be put on hold during the lockdown.
Alarms in communal areas: testing or inspecting alarms in communal areas is still possible, provided all precautions are taken to avoid contact with other people.
Alarms in tenancy properties: the tenancy agreement will usually require tenants to check these themselves on a monthly basis. Some HMO licences may require the landlord/agent to test smoke alarms on a regular basis. Seek advice from your local authority, and follow similar steps to those outlined for gas and electrical safety above.
Fixing faults: If you identify a fault in a fire alarm following a test/inspection, these should be dealt with provided all precautions are taken to avoid contact with other people.
These are not essential during the lockdown and should be avoided.
Repairs will depend whether they are “essential” or not. Essential repairs might include things like a severe leak causing damage to property or electrics such as a burst water mains pipe, or a broken boiler leaving a property without heat or hot water.
If a repair is not essential, these should be noted and addressed after the lockdown.
Evictions and possession proceedings
STOP PRESS: Government guidance now available for landlords in the private and social rented sectors on the measures relating to notices seeking possession modified by the Coronavirus Act 2020. The measures affect three eviction processes:
- The Section 21 process (Assured Shorthold Tenancies)
- The Section 8 process (Assured and Assured Shorthold Tenancies)
- Notices under section 83 of the Housing Act 1985 (Secure Tenancies)
The Coronavirus Bill has been published by the Government and includes provisions relating to protection from eviction for residential tenants.
The changes will start from the date the Act is passed into law and will end on 30 September 2020. The end date can be changed if necessary. Ministers can also make any changes to the time limits or other details after the legislation becomes law. There is also likely to be a pre-action protocol introduced for private possession claims.
Landlord Action has now introduced a rent repayment agreement template that you can use to negotiate a payment plan with your tenants.
What are the changes?
- Section 8 notices, section 21 notice and Notices to Quit for Rent Act 1977 tenancies will have the length of notice increased to three months.
- A section 8 notice is most commonly used for two months or more arrears and normally is a fourteen day notice (plus four days for service). This will be increased to three months from when the Act is passed until 30 September 2020.
- A section 21 notice is normally at least two months and will also increase to at least three months.
- Changes will also be made to the prescribed forms that are used (Form 3 for a section 8 notice and Form 6A for a section 21 notice in England only).
- The Bill also includes a power to increase the notice period to six months if necessary.
- Equivalent provisions will apply in Wales
How does this affect Court proceedings?
- notices served before the Act comes into law are unaffected and possession claims can be started when the notices expire.
- notices served after the Act comes into law can lead to possession claims once the three month notice expires
- any extension in the notice period to six months is likely only to apply to notices served after the extension becomes law
- there appears to be no change to the requirement for section 8 hearings to be held not less than four weeks but not greater than eight weeks.
- even though it may still be possible to start possession proceedings, the courts will be struggling to cope - hearings are only allowed if they can be done remotely and it’s likely any hearings could be postponed
- this means that both ongoing and new eviction action will be stopped for 90 days, but this may be extended if the Coronavirus crisis lasts for longer
- as a result, no eviction proceedings can progress to the stage where someone could be evicted.
Government help for business
The Government has set up a comprehensive guidance webpage. This gives more details on the support measures available to business, which include:
- Business Interruption Loan Scheme: (UK wide) this scheme will help businesses affected by coronavirus to access bank lending and overdrafts if they need to. For loans up to £5 million, the Government is providing a guarantee of 80% for each loan.
- Income Tax Deferral for the Self-Employed: (UK wide) if you are self-employed, Income Tax payments due in July 2020 under the Self-Assessment system will be deferred to January 2021.
- Job Retention Scheme: (UK wide) under the coronavirus Job Retention scheme, all UK employers with a PAYE scheme will be able to access support to continue paying part of their employees’ salary for those that would otherwise have been laid off during this crisis.
- Small Business Grant Funding: (England only) the Government is providing additional funding for Local Authorities to support small business that already pay reduced business rates.
- Statutory Sick Pay Rebate: (UK wide) the Government will bring forward legislation to allow small and medium-sized businesses to reclaim Statutory Sick Pay (SSP) paid for staff sickness absence due to coronavirus.
- Time to Pay: (UK wide) all businesses and self-employed people on financial distress, and with outstanding tax liabilities, may be eligible to receive support with their tax affairs through HMRC’s Time to Pay service.
This continues to be updated and you can get the latest here.
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