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Legal ramifications for lettings of coronavirus: Q&A with DAS LAW

Simon Roberts, Senior Associate with DAS Law, part of the DAS UK Group, answered questions on the legal implications for lettings of the coronavirus (COVID-19) pandemic in a Goodlord webinar.

The Goodlord team

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This article was originally published on 25 March 2020. Although we endeavour to keep our coronavirus (COVID-19) content as up to date as possible, the situation is rapidly changing, so please ensure you refer to gov.uk for the latest advice and information.

Simon Roberts, Senior Associate - Solicitor Legal Advice - with DAS Law, part of the DAS UK Group, joined Goodlord for our Coronavirus and lettings webinar on 17 March. He answered questions about the legal implications for letting agents and landlords of the coronavirus (COVID-19) pandemic.  

What are the legal implications if a property can't be accessed for repairs due to self-isolation or quarantine, either of the tenant or the contractors?

Interesting question. Let's move to the tenants first. The key to this is about planning - a tenant is only going to self-isolate for 7-14 days, so I would expect that you can plan around that and ensure that any repairs that need to be done are done after that period or when the tenant informs you that they are not symptomatic or have received a negative test.

Moving on to the contractors, I imagine that this virus is going to affect them just as it has everyone else, so I guess for letting agents you need to make sure that they're adhering to all the medical guidance and that you have enough contractors on your books to ensure that repairs can be carried out. 

The key message is, throughout all of these questions, is there are no legislation changes. As far as the law is concerned, it's carry on as normal, but do your best in the circumstances. So, again, I think planning is key - ensuring that you have enough contractors on your books to call upon and encouraging tenants to keep a dialogue with you if they're not able to let contractors in. But you can only have a short delay because of this virus and you need to make sure that those repairs are done as soon as possible. 

What about the early part of the process, the Right to Rent process and the document checks for that, how should agents approach that?

Again, there's been no legislation change here, so you still have to do your Right to Rent document checks and you're going to need the individual to come in and hand over their documents. If you look at the guidance from the government and the home office on this matter, you've also got to check that the holder of the documents represents the identity of the individual that's holding them. So, practically speaking, you still need to do this Right to Rent check, and you still need your prospective tenants to come in and provide that documentation. You owe a duty of care to your staff to ensure that they are taking all the necessary of precautions to ensure that the virus is not going to spread in your offices and keep the social distancing.

But as I said, there's no legislation change, you've got to do it to avoid facing the fines and ultimately, with this Right to Rent legislation, custodial sentences are the worst-case scenario. But, as I said, as long as you take all reasonable steps to ensure that your prospective tenants are coming in and handing over their documentation and that you sanitise and wash your hands afterward, then I think all should be fine. As a business, you have to find a way of ensuring that that can be done as safely as possible.

For tenants who either get infected or find themselves in self-isolation, what happens if they can't pay their rent due as a result?

I think this is going to happen. We’re taking a lot of calls from businesses where they're having to let staff go, even in the last few days, so I imagine this is going to have a big impact on tenants' ability to pay. That doesn't change the contract in any way, so they still have an assured tenancy agreement with you and they have to pay their rent, or face the consequences if they don't. 

I think your power as a landlord to take legal action - whether that's just a claim for rent or to start possession proceedings - is business as usual and you can do that. If you have a tenant that normally is a good tenant and pays their rent on time, it's then down to the landlord and the tenant to agree a temporary measure with some conditions to repay at a later date, but as I said your rights, as landlord have not changed and you can take all the action that you need to to enforce your agreement.

Is that also true of Houses in Multiple Occupation (HMOs)? If some tenants have to move out temporarily, because of a tenant in the HMO who's self-isolating, are they still legally obligated to pay the rent?

We've had a look at the legislation on this, and again, there is no guidance from the government or the legislation about HMOs. If you have a licensed HMO, and others take it upon themselves to leave, then they are still legally obliged to pay the rent.

What advice do agents have the right to give to their tenants here?

There’s no legal obligation on agents and landlords to give any information to their tenants. You've got to decide in the business whether you want to be approaching your tenants, especially if you've got things to arrange like gas safety certificates, or any other inspections. That's the time when you reach out to tenants and say, look, we need to plan this in, if you're self-isolating let us know early so that we can plan around it. Other than that, there is no obligation on you to go to provide any guidance. If tenants contact you, then refer them to the government.

What about if a tenancy contract is ending and the notice has already been served, but the tenant finds themselves in self-isolation or maybe can't go home due to travel restrictions, if you have a foreign tenant for example, what can or should agents do then?

There are some practical and legal considerations here. If a notice has been triggered, whether that's from the tenant or the landlord serving either a Section 8 or Section 21 notice, then effectively, the tenant should be leaving and the landlord can take action to remove the tenant through the courts as they do normally, but I think that then moves us onto practical considerations.

If you are satisfied that the tenant is going to leave, albeit that they are self-isolating or are just waiting for the next available flight or train, then a temporary measure is fine. Again, I appreciate that you're not able to re-let the property, but the alternative is litigation and it's going through the courts and getting the next available slot for a court order. Based on previous pandemics, the judiciary is also affected, and that can delay proceedings, so, if you can, think about a practical solution and have a dialogue with your tenant.  

The other point is that, if you are going to take legal action, bear in mind that any notices that you have served through your Section 21s or Section 8s, they're only going to  be valid for six months, so make sure that if you are needing to litigate, you do that in good time in order for it to be valid and that you can then get a valid possession order.

Are there any other rights that letting agents and landlords should be aware of regarding section 21 and section 8 evictions during the pandemic?

The real concern I have is that, under the Section 21 procedure, there's a lot of hoops that landlords have to jump through now to ensure that they are valid - deposits, EPCs, How to Rent information, gas safety certificates - so my concern here is that things like that get delayed, and that stops the landlords being able to serve a Section 21. For your new tenancies, it's about making sure that you plan that in and allow more time. 

For renewals, it's making sure that your gas safety certificates are done in good time, and allowing a longer period, I think, so that if a tenant comes back and says, "Actually, I'm self-isolating" or "I have the virus", then you can then have plenty of time to rearrange it and get it done.

If the government closes High Street branches or small businesses, what will letting agencies' rights be?  

At the moment there isn't legislation in place to close theatres, cinemas, pubs, restaurants - it's government guidance. If they do legislate, then we have to follow those rules. You then have to decide what you can do remotely, what you can do without needing to interact with prospective tenants, and so on. You've got to put adequate measures in place to ensure that contact is minimised and that you're regularly washing your hands, cleaning surfaces, and so on. If you have staff that work for you, you have a duty of care to ensure that you are providing a safe working environment. 

The legal advice in this article is for general guidance regarding rights and responsibilities only and is not formal legal advice, as no lawyer-client relationship has been created.

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