The Association of Residential Letting Agents (ARLA), a leading UK professional association for letting agents, is advising its member agents to not to rely on online government documents, which are required to fulfil their legal requirements.
ARLA cites a number of incidences where civil servants responsible for drafting official documents are making serious mistakes, mistakes which would prejudice an agent’s or their landlord’s position if these documents are relied on in court.
In particular ARLA highlight their concerns about the Section 21 claim form, and the government published How to Rent guide, a document which must now be served on all assured shorthold tenancy (AST) tenants at the start of their tenancy. Both of these ARLA say, could invalidate a landlords’ claim for possession of a property.
A failed claim can cost an agent / landlord dear: with an additional court fee of £350, a further 2 months’ notice period and one month to six weeks to get before the court again, plus legal fees and any rent arrears that may be accruing, and this amounts to no trivial matter.
David Cox, ARLA Managing Director claims that there is a fundamental error in the Government’s How to Rent guide, which must be served on all tenants before issuing a Section 21 claim.
The handy guide was produced by DCLG with the idea that tenants can be helped to understand what questions to ask when renting a property; what their rights are, and what responsibilities they and their landlord have.
The How to Rent guide states that rather than handing tenants a hard copy, it is acceptable for landlords or their agents to direct tenants to the GOV.UK website where they can find a link to a PDF version of the leaflet. ARLA emphasise that the first page of the guide says that “This guide is best viewed online as it contains hyperlinks.”
However, David Cox, a lawyer by training, believes that service of a document via a link to a website is unlawful. He says: “On page 5 under the “The landlord must provide you with” section it states “A copy of this guide How to Rent: The checklist for renting in England either via a link or as a printed copy”.
“It is our understanding that service of a document via a link to a website is unlawful.
“When serving by email, a link is not sufficient as it does not provide the recipient with an indefinite copy of the document (should the webpage be taken down or its address change the recipient will no longer be able to access the document).
“We are advised service by email must include an electronic copy of the document (such as a pdf for example).
“Further, service by email is only acceptable if the other party (the tenant in our case) specifically agrees to allow such service. This is not included in the wording at all.
“I am therefore somewhat concerned the current wording does not provide sufficient clarity and could result in landlords and agents inadvertently failing to correctly serve documents which may result in a Section 21 Notice being thrown out of court.”
“It’s certainly not unusual in the digital age to want to direct people to documents on a website or stored in the cloud, but we’d advise any agent who needs to serve an official document electronically, to do so by adding the document as an attachment rather than providing a link.”
Landlords and agents need to be sure that their tenants have agreed to accept legal documents by electronic means if they intent to use this medium, either by signing a tenancy application form to this effect, and/or by means of a separate clause in the tenancy agreement.
The Section 21 Form
The second error identified by ARLA has exposed concerns about the new Section 21 notice. ARLA says that the official form for serving a Section 21 notice leaves agents with nowhere to put the landlord’s name and address – even though this is a legal requirement.
David Cox, says:
There is an error on Form 6A: “If you look at Section 4 on page 3 “Name and Address of Landlord”, there is no box underneath for the landlord’s name and address.
“Whilst this is OK for landlords serving the Section 21 Notice themselves, (as they fill in their name and address in the signatory’s box further down the page), where agents are completing the form on their landlord’s behalf, it will be the agent’s details in the signatory box rather than the landlord’s.
“This leaves nowhere for the landlord’s name and address to be entered on the form which our advice says is required for the valid service of a Section 21 Notice.
“Therefore, we are recommending agents use the second signatory box to insert the landlord’s name and address, which is not what the box is designed for.”
This would be the second time that Department for Communities and Local Government (DCLG) have put out the new s21 notice with errors in it.
ARLA says it has been in contact with DCLG to try and get this amended so that agents aren’t left in this vulnerable position.
— LandlordZONE (@LandlordZONE) August 30, 2016