OpenRent Community

When to correctly serve the government's How to Rent guide?!

Hello,

Hope you’re all well and had a lovely new year!

Before I expand on the title of this topic, it’s best I give you a quick summary of my process when letting a property:

  1. I advertise a property for rent;
  2. I screen interested tenants;
  3. After carefully selecting who I’m happy to proceed with, I’ll invite them to put down a Holding Deposit via email.

Now, the email I send them consists of details of the Proposed Let, the Holding Deposit terms, and where to make payment if they’d like to reserve the property. I also attach the following documents to the email:

  • the property’s EPC
  • the government’s How to Rent guide (latest version)
  • a sample of the tenancy agreement I use

Now, here’s where I’m getting confused…

It states in the government’s How to Let guide (as well as many other online sources) that a landlord must provide tenants with a copy of the latest version of the How to Rent guide “at the start of a tenancy”.

So, here are my questions:

  1. What is the bloody point of serving this guide AFTER the contracts have been signed and we’ve entered into a tenancy agreement?! One of the first few chapters of the How to Rent guide is even called “Before you start” - wouldn’t the tenant benefit from this information BEFORE entering into a tenancy agreement? Or even better, BEFORE placing a Holding Deposit? This is the reason I’ve always attached the guide in my Holding Deposit Invitation emails.

  2. Now the important question; because I serve this guide BEFORE the tenancy starts (i.e., at the Holding Deposit stage), does this mean I’ve served it incorrectly, essentially invalidating my right to serve a section 21 notice?

Looking forward to all your thoughts on this!

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The implementation of legislation is often very different to the Government’s intentions. You are right that the booklet is almost useless to the tenant at this stage. However, its what the legislation says. That’s why you should never bother with Government guidance documents as these are usually a guide to their intentions, not to what has actually become law.

Incidently, I hope that your steps 2 or 3 above include a viewing of the property.

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Thank you for your reply!

So from what you’re saying, by serving it at the Holding Deposit stage (which is effectively before the start of any tenancy), I’ve served it at the wrong time and won’t be able to rely on a section 21 notice?

And yes, viewings are always included before anyone is invited to place a Holding Deposit - I should have mentioned that!

The wording of the regulation is:
“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)” (where para 2 details the How to Rent document).
It doesn’t say when, so it can be served at any time before a s21 notice. However, it does use the term “the tenant” and it may be possible for a solicitor to construct an argument in court that pre-tenancy is too early, although I’ve never heard of that defence being used. I would say, just give it to them during the tenancy. Are you asking because you’ve already served a s21 and you are concerned about compliance?

Got it. Thanks for your input, David.

From now on, I’m going to serve the guide to the tenant after we’ve entered into a tenancy agreement and the AST’s been signed.

I haven’t served a s21 yet, but one of my tenants has started taking the mick recently in regard to paying the rent, so I’m just keeping a close eye on them. I just want to be prepared for the worst-case scenario!

lot of my tenant enquiries r international, when they make contact and show interest, I send the gov link to the guide, thus sets the ball rolling, need to do right to tent check anyway beforehand so this helps. I also then put in the contract that the right to rent info was provided again inserting the link

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Thanks for your input!

There’s no harm in providing it twice if you’re providing it digitally. Sending it beforehand can potentially save you both a headache, and sending it afterwards gives you protection.

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As above, just serve them another copy the day before any s21 notice

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Good advice, thank you!

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Hi Maria27, The gov. guidance to landlords and agents on the 2019 Tenant Fees Act states “You should provide your tenant with a copy of the tenancy agreement before
taking the holding deposit.” I interpret this as more than just a “sample”, as indicated by your opening message above, so I prepare a tenancy agreement with all the correct details before accepting a holding deposit.
I also include a clause in the tenancy agreement as follows: “The Tenant acknowledges receipt of this Tenancy agreement before having paid a Holding Deposit, and before paying a tenancy deposit acknowledges having received: How To Rent guide; EPC; DPS Terms and Conditions; DPS Prescribed Information; Landlord’s privacy notice; Superior Lease; Inventory; PAT certificate; EICR certificate.”

Hope this helps

Thank you for the advice, Richard!

You need to be very careful that you are not leaving yourself open to the tenant claiming you have a contract at that point. I also send tenants a draft of the agreement, but it has “draft” stamped all over it and its unsigned and undated.

Government guidance is not the same as the law and this particular peice of guidance sounds very poor.

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