At first blush, the “How To Rent: Checklist for Renting” in England might appear to be a document which contains little in the way of helpful information and which is of minimal practical use. In all frankness, it may well appear to be so at the second and third blushes as well. It would not surprise many landlords to learn that the document had never even read by their tenant. However, no landlord should be in any doubt of the fundamental importance of providing the How To Rent Checklist, as failure to do so will be fatal to claims for possession based upon a s.21 notice. I have recently been instructed on several cases where this has been central to the defence to a possession claim.
Hopefully, this will not be news to any landlords reading this article, but for those who may not have been aware of this requirement, you’re welcome. For those who just want to make sure that they have everything in place for a s.21 possession claim, the 5 minutes that it will take to read this article may turn out to be time well spent.
Seeking possession following under the s.21 procedure is very much a case of ensuring that all ducks are neatly in a row. Have you protected the deposit in time? Provided the prescribed information? Got all your EPC’s and Gas Safety certificates in order? These hoops that a landlord needs to jump through might all appear to be of greater importance than the provision of the How to Rent Checklist. This is not the case: a failure to fulfil any of these requirements is likely to scupper any possession claim brought under a s.21 notice.
First, let us look at the law. Section 39 of the Deregulation Act 2015 inserts the following as s.21B of the Housing Act 1988, which sets out the obligation to provide the How To Rent Checklist.
(1) The Secretary of State may by regulations require information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy of a dwelling-house in England (or any related matters) to be given by a landlord under such a tenancy, or a person acting on behalf of such a landlord, to the tenant under such a tenancy.
The specification that the “information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy” should come in the form of the How To Rent Checklist is set out in Regulation 3(1) and (2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations.
(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph 2.
(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.
The Checklist should be provided in hard copy except where the tenant has confirmed to the landlord or agent that they are content to accept service by email and provided an email address.
So, at the commencement of the tenancy, be sure to provide the current How To Rent document. Landlords should be aware that the Checklist is updated regularly by the Government and consequently it well worth checking that the version being provided is up to date. The current version can be downloaded from the government website, the link to which is below:
https://www.gov.uk/government/publications/how-to-rent
Fortunately, there is no requirement for a landlord to re-serve the tenant with the new version each time one is published (Regulation 3(4)). However, and it is a big however, should the tenancy be renewed or replaced and a new version of the Checklist has been published before the first day of the new tenancy, then this new version must be provided to the tenant. Failure to do so before service of a s.21 notice will render it invalid.
The law can be found at Regulation 3(5), which reads as follows:
(5) This regulation does not apply:
(b) where –
(i) the tenancy (“the new tenancy”) is a replacement tenancy;
(ii) the landlord, or a person acting on behalf of the landlord, provided the tenant with the document mentioned in paragraph (2) under an earlier tenancy; and
(iii) the version of the document provided to the tenant under the earlier tenancy is the same version as the version which is in effect on the first day of the new tenancy.
It is of vital importance to note that the expiry of the fixed term, so that the tenancy becomes a statutory periodic, does create a replacement tenancy for the purposes of the Regulations. Therefore, it is absolutely essential that landlords check whether there is a new version of the How To Rent Checklist at the end of the fixed term. If one has been published, then it must be served on the tenant.
To make this clear, here are two worked examples. For the purposes of these examples, we will assume that a new version of the How To Rent Checklist was published on 01/03/2022.
1) Tenancy began 01/01/2021, for a fixed term of one year, with the correct version of the Checklist being provided at the beginning of the tenancy. As the later version of the Checklist was published after expiry of the fixed term, there is no requirement for the landlord to provide the later version of the document when the tenancy becomes periodic.
2) Tenancy began on 01/01/2021, for a fixed term of 18 months, with the correct version of the Checklist being provided at the beginning of the tenancy. As the later version of the Checklist was provided before the expiry of the fixed term, the landlord must provide the later version of the document when the tenancy becomes periodic.
While this article is of limited scope it is hoped that it may help landlords avoiding any problems at court stemming from failure to provide the How To Rent Checklist.
The team at Becket Chambers are regularly instructed on all kinds of possession claims. For any enquiries, please do not hesitate to contact our clerks at clerks@becket-chambers.co.uk.
