2019年4月15日
RED alert - Spring 2019 – 5 / 7 观点
This article summarises three important updates to the law that will affect residential landlords and tenants:
The TFA comes into force on 1 June 2019 and will apply to all new assured shorthold tenancies, student lettings and licences in England. It will not apply to social housing, statutory periodic tenancies (which became periodic before 1 June 2019) or other long leases.
If a tenancy commenced before 1 June 2019, landlords and letting agents will still be able to claim any prohibited payments up to 1 June 2020 as a transitional period.
From 1 June 2019 any payment from a residential tenant to a landlord or its letting agent will be prohibited, unless it is specified as a 'permitted payment' in the TFA. If a landlord or letting agent accepts a prohibited payment after 1 June 2019, it must return the funds within 28 days from the day it is accepted.
The key provisions are outlined below:
The HFHHA came into force on 20 March 2019 and applies to all new tenancies (with a term of less than 7 years) and any tenancy which became periodic on or after 20 March 2019. If a current tenancy is already periodic, it will apply from 20 March 2020. It also applies to common parts of a dwelling let to a tenant.
The HFHHA imposes an implied term into a tenancy that the property must be fit for human habitation, and that it will remain fit for human habitation throughout the term of the tenancy.
Essentially, a property will be unfit for human habitation if there is a serious defect in either repair, stability, damp, lighting, ventilation, water supply, drainage/sewage, cooking facilities, internal arrangement or if there is a 'prescribed hazard'. It is not possible to contract out of these obligations.
However, landlords will not be responsible for damage caused by the tenants, by fire, by storm or by flood, nor will the HFHHA apply to anything that the tenant can remove from the property. The HFHHA also implies a covenant into the lease to the effect that the landlord is able to inspect the property to view its condition by giving reasonable notice.
Whilst the HFHHA does not specify the point in which a landlord is in breach of the HFHHA, commentators generally agree that the current common law position will still apply.
Under common law, tenants have a duty to put the landlord on notice of a defect in the property and the landlord can then act accordingly. A court is unlikely to find that a landlord is in breach of its statutory obligations if it is unaware of an issue or if it has been unable to attempt to remedy a defect in the property.
The High Court has ruled that the government's Right to Rent Scheme (the "Scheme") causes racial discrimination in breach of Articles 8 (right to respect for private and family life) and 14 (non-discrimination) of the European Convention on Human Rights.
The Immigration Act 2014 requires landlords in England to comply with the Scheme, by checking a prospective tenant's documents to show that they have a right to be in the UK. For UK/EU nationals, the test is satisfied by showing a UK/EU passport. However, for anyone from outside of the UK and Europe, it is necessary to also show visa documentation.
In this case, the Claimant provided substantial evidence in the form of surveys and 'mystery shopper' emails, showing that the scheme was discriminatory towards foreign nationals. The Defendant argued that even if the scheme was discriminatory, the issue derived from the landlords' conduct, not the policy itself.
The judge found that it was the Scheme itself that made landlords discriminate, as evidence showed that, in the absence of the Scheme, landlords would not discriminate against foreign nationals to the same extent. The judge also stated that the Defendant fell short of even justifying the scheme and that parliament's decision to approve the legislation was without "reasonable foundation".
Currently, the Scheme is only in practice in England, so the ruling stifle the Scheme from being transferred to other parts of the UK. Despite the decision, landlords in England will still need to comply with the Scheme, until amendments are made to the Immigration Act 2014.
Bucknell v Alchemy Estates (Holywell) Ltd [2023] EWHC 683 (Ch)