Coronavirus: how to avoid disputes over residential tenancies

The relationship between landlord and tenant is potentially fraught at the best of times but during the COVID-19 pandemic the situation has become worse, with many tenants experiencing difficulty in paying rent in full and on time. The government introduced emergency legislation to suspend new evictions from social and private rent accommodation back in March this year and all possession notices (either under section 8 or section 21) served between 27 March and 30 September this year must give six months’ notice in most cases before court proceedings for possession can be commenced. You cannot be evicted from your home without a court order.

Until 20 September, landlords are able to continue with existing proceedings or commence fresh possession proceedings against their tenants provided (amongst other things) that proper notice has been served and pre-action protocols complied with. However, it is likely that it will take over a year for the courts to work through the cases that have been on hold and landlords cannot evict you without obtaining an order for possession, which they may also need to enforce.

New government figures reveal that 4,740 households had been served a section 21 (no fault) eviction notice between January and March 2020, which is a 24 percent increase on the previous quarter. There is concern that the end of the eviction ban could prompt a COVID-19 surge if there is the anticipated “avalanche” of homelessness. Let’s hope that with co-operation and communication between both sides this can be avoided.

Please note that if you are served with notice that your landlord requires possession, the notice itself may be invalid. For example, if the landlord has not properly protected your deposit or provided and maintained the necessary environmental protection certificates, smoke and carbon monoxide alarms, electrical equipment testing and gas safety certificates that they are required by law to do, their notice may be deemed invalid.

In the 2018 case of Smith v Khan, the original award of damages for unlawful eviction calculated at the rate of £40 a day was increased to £130, which was upheld by the Court of Appeal. Landlords need to tread very carefully!

To help tenants understand their rights, I outline some common questions below:

Can I withhold rent if my landlord fails to carry out repairs?

Generally, you do not have the right to withhold rent. However, in some circumstances you can pay for the repairs and deduct the cost from future rent. You must, however, give your landlord time to do the repairs and if they do not, you should obtain three estimates of likely costs which you should give your landlord in advance so that they can still choose to do the work themselves. If they do not, you can then get the work done and ask them to pay the invoice or deduct it from future rent if they refuse.

Can I let out my flat on Airbnb or similar?

The likely answer to this question if you are a tenant is “no”. You will need to check your lease or tenancy agreement but it is likely to include covenants that you will use the property for a private residence only and/or agree not to sub-let or use the property for trade or business or do anything that may cause or permit nuisance. You may be tempted to take a chance because of the money that can be made, but please do check first and if in doubt, seek your landlord’s consent.

Who is responsible for what is in my rented property?

Again, you will need to check your lease or tenancy agreement but generally your landlord is responsible for the structure and exterior of the property, gas appliances, pipes, flues, ventilation, electrical wiring, sanitary fittings (including pipes and drains) heating and hot water.

You are likely to be responsible for your own appliances and furniture and any damage caused by you, members of your family or your guests. Your landlord can also ask you to pay if you have caused any damage indirectly by, for example, failing to maintain or use fittings or fixtures properly.

Can I stay in my home during repairs to it?

Generally, you have the right to stay in your home during any repairs and your landlord must tell you how long, when and where they are going to take place and keep any disruption to a minimum. Only if there is no other way that the repairs can be done can you be made to move out and if you do not agree, the landlord will have to get a court order as outlined above.

Depending on the terms of your tenancy agreement or lease, your landlord is probably not obliged to provide you with alternative accommodation but they may be willing to pay you compensation or costs if you have to move out.

It is likely that in the coming months the potential disputes regarding residential tenancies will increase and, as always, my advice would be to talk to your landlord about any particular problems or issues before they become the focus of an actual dispute. If you cannot reach a workable solution by just talking to them, you should consider appointing a mediator who as an independent third party will seek to facilitate settlement without the need for court proceedings. This can save time, money and a lot of unnecessary stress as well as being entirely confidential and can help preserve relationships.

If you or anyone you know has any questions or concerns regarding a residential tenancy or lease, please do get in touch with Annabel Clark using the below details.