The Government has made many changes over the last few years in an effort to try to protect tenants from unscrupulous landlords. All of these changes have not come into effect at the same time which has now created a minefield for landlords. The problem for a landlord is that if it does not strictly comply with the cumbersome legislation, not only may it not be able to obtain possession of its own property but it may be liable to pay a fine and/or compensation to its tenant. Furthermore, some tenants are well aware of their rights and will not hesitate to take advantage of a landlord that does not comply with the statutory rules.

When granting an AST a landlord should do the following:

1. Obtain and check references. Normally your letting agent will do this but ask for copies and ensure they have checked the authenticity of them.
2. Obtain proof the tenant is legally entitled to live here. A landlord or agent must ascertain whether a prospective tenant or occupier has the right to occupy the premises before granting a tenancy. In addition there is a more onerous obligation to make sure that right does not lapse. To comply a landlord should obtain, verify and retain a copy of prescribed documents. If a landlord or agent is unable to obtain prescribed documents it should apply for a Positive Right to Rent Notice from the Landlord Checking Service. Landlords should be aware that the rules not only apply when it grants a new residential tenancy but also where there is a variation to the current tenancy which results in new occupiers taking occupation. The time for compliance is 28 days before the tenancy agreement is entered into. It is important that a landlord or agent keeps copies of the prescribed documents as it will need to provide these to the Secretary of State upon request, failing which it may be ordered to pay a fine of up to £3000. Further information can be found in the Home Office’s publication “A Short Guide for Landlords on Right to Rent”.
3. Have a well drafted Tenancy Agreement. You may wish to consider what terms are important to you, for example you may wish to have a clause in the agreement that the tenant is to reimburse you any legal costs you incur as a result of any breach of the agreement and/or legal costs for obtaining possession of the property. In the absence of such a clause you are likely to only be able to recover fixed court costs which will be significantly less than the costs you incur. As an AST will automatically continue after the fixed term it is normally advisable to grant it only for 6- months, this being the minimum term of an AST. Should you have a problem you will hopefully be able to bring the tenancy to an end at the six month period rather than having to wait for a longer fixed term to come to an end.
4. Protection of the Tenant’s Deposit. If taking a deposit from the tenant this must be protected in a Tenancy Deposit Scheme within 30 days of taking the deposit. Normally your letting agent will do this for you, however you should check this has been done and keep proof of it. If you fail to protect the deposit then you may not able to obtain possession of your property in the absence of the tenant breaching the tenancy agreement. 
5. Serve Prescribed Information on the Tenant. Once you have protected the deposit ensure that the required Prescribed Information is sent to the tenant within 30 days of taking the deposit. Ensure you keep a copy of this together with proof it has been sent. In the absence of doing this you may not able to obtain possession of your property unless the tenant is in breach of the tenancy agreement.
6. Provide the required documents to the tenant. A landlord is now required to provide at the commencement of the tenancy all of the following: 
   • an Energy Performance Certificate;
   • a copy of the Gas Safety Certificate;
   • The Department for Communities and Local Government booklet: ‘How to Rent: The Checklist for Renting in England’. *This must be the current version at the time the tenancy is entered into. A Landlord may wish to keep a copy of the version sent.
7. Requirement for the installation and checking of Smoke and Carbon Monoxide Alarms. Landlords must install smoke alarms on every floor of their property, and Carbon Monoxide Alarms in high risk areas such as where there is a solid fuel heating system. A landlord must also check these alarms are in working order. A failure to provide the above will restrict the landlord’s ability to bring the tenancy to an end unless the tenant is in breach of the tenancy agreement. 
8. Deal with any complaints from the tenant. A landlord is not permitted to serve notice to bring the tenancy to an end in the absence of a breach of the tenancy agreement by the tenant where the tenant has made a complaint in writing about the condition of the property and:

• the landlord has not provided a response to the complaint within 14 days beginning with the date on which the complaint was given; or
• the landlord has provided a response to a complaint but that was not an adequate response; or 
• the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord; or
• the relevant local housing authority served the relevant notice in relation to the property in response to the complaint.

The reference to an adequate response by the landlord requires the landlord to respond in writing and provide a description of the action the landlord proposes to take to address the complaint. This must set out a reasonable timescale within which the action will be taken. The difficulty faced by landlords here is that if a tenant wishes to remain in a property and suspects that the landlord may take steps to bring the tenancy to an end all it needs to do is put the landlord on notice of a potential complaint and make the necessary referral within the time specified to the local housing authority. No doubt the local housing authority will have a considerable number of complaints to deal with and its response times will not be quick. This will serve to delay matters for a significant period of time where the landlord is prevented from bringing the tenancy to an end.

Karen Bright is a Partner at Bishop & Sewell, Dispute Resolution Team.