When a tenant has chosen a property they wish to rent, the tenant must formally apply for the tenancy by reading and signing our guidance notes for tenants. These provide us with the details that we need to submit to our clients, the landlord, for their consideration. If our client, the landlord, instruct us to proceed, we will need to take up references. When applying for a tenancy the tenant agrees to be bound by the terms contained in the guidance notes.
Points to remember before you submit your offer to us:
- Agents act for landlords and their first responsibility is to the landlord. The landlord will expect us to offer the property in its best light and negotiate the highest rent the market is prepared to pay consistent with the landlord’s own on-going requirements.
- We will always answer questions asked in an honest and open manner, acting in good faith, in providing information we have been given by the landlord.
- We cannot act for applicants who should take their own professional advice to ensure that the chosen property meets their individual requirements.
To ensure your individual requirements are met, we strongly recommend the following to all applicants:
- It is expected that you will make yourself aware of all matters that are in the public domain. You should therefore make enquries and searches, for example, of the numerous websites that provide information about properties, locations, services to properties as well as to transport links, schooling and environmental issues that would include noise, planning, flooding, pollution and congestion.
A reservation fee will be taken to secure the property until all references, credit searches and tenancy documents are prepared. Should the references/searches prove to be unsatisfactory or the landlord withdraws, this reservation fee will be refunded in full less the cost of credit references and if applicable, the administration fee. The reservation fee will be deducted from the account on payment of the check in fees.
We apply to a credit reference agency for a financial and personal grading for each prospective tenant in order to satisfy the landlord that their property is likely to be well looked after and that the rent will be paid on time. These will include a credit check, references from an employer, an accountant and a previous landlord. For company lets we will review the company’s trading position.
If sufficient information has not been obtained it may be necessary to nominate a guarantor who will act as security for the term of the tenancy agreement. The guarantor must be a UK based property owner and will be referenced in the same way as the proposed tenant.
In some cases it may be appropriate to ask that all the rent is paid at the start of the tenancy, this is subject to the landlords approval.
The tenant’s references will if requested be forwarded to our client – the landlord. If the references are acceptable to the landlord we will draw up the tenancy agreement.
We will require evidence of the tenant’s identity before proceeding with the application. It is necessary to provide one of each primary and secondary identification as detailed below. One of these documents must be a photo I.D. (primary) and one must show the tenant’s address and be less than three months old (secondary).
- Full Valid Passport
- Valid HM Forces ID Card
- Driving Licence (with photo ID)
- Original utility bill or original council tax bill
- Original mortgage statement for the year just ended
- Original bank statement for current account
Right to rent
We must check every tenant to ensure they can legally rent a property in England.
GUIDELINES FOR SHARED TENANCIES
When considering applying to take a tenancy with other sharers it is important to understand the obligations the tenant and their fellow occupants will be entering into. This guide highlights some of the issues that will need to be considered:
The tenancy agreement will make each sharer jointly and individually responsible for all of the tenants’ conditions set out in the tenancy agreement.
All parties to the tenancy agreement will have these responsibilities even if they leave the property before the end of the tenancy term.
Rent must be paid by standing order mandate unless otherwise agreed. Any rent not paid is the responsibility of all sharers.
At the end of the tenancy the inventory will be checked and all of the tenants will be responsible for any dilapidations even if they, as individuals, did not cause the dilapidations.
Only when all rent for the full term and any properly agreed compensation for any dilapidations has been accounted for will any of the deposit monies held be disbursed.
The tenant must supply information about the relationships between each occupant to enable the landlord to assess whether the tenancy being created will result in a House in Multiple Occupation (HMO)
In 1954, Lord Denning ruled that there is an obligation on every residential tenant to treat the property in a “tenant-like manner”. This means that the tenant must take proper care of the property; if going away for the winter, turn off all the taps and arrange for the tank to be drained; must clean chimneys when necessary; must unblock the sink when it is blocked; must mend electrical fuses and change electric light bulbs when necessary.
In addition, the tenant must not damage the property willfully or negligently, and must see that family or guests do not damage it. If they do, the tenant will be responsible for the cost.
The tenant’s full responsibilities are set out in the tenancy agreement.
It is important that the tenant reads their tenancy agreement carefully and ensure they understand its contents. Anything the tenant does not understand can be explained by us or, should the tenant wish to take independent advice, a solicitor.
Marshalls is not and cannot be a party to the tenancy agreement which is a contract between the tenant and the landlord. It must be understood that Marshalls has no responsibility for either party meeting their obligations to the other party.
Before the tenancy starts, usually an inventory will be prepared to provide a detailed schedule of the contents and the condition of the premises. The inventory is a very important document because it can protect both tenant and landlord from disagreements at the end of the tenancy.
The costs for the preparation of the inventory and schedule of condition are borne by the landlord. The tenants are responsible for the check out fee. If the tenant chooses not to be present at the check in, the inventory clerk will sign the inventory and schedule of condition on the tenants behalf. It will not be possible to subsequently amend the document in any way other than with the agreement of the inventory clerk.
If the tenant decides not to be present at the check out it will not be possible to amend the check out report without the agreement of the inventory clerk.
STAMP DUTY LAND TAX (SDLT)
Stamp duty land tax is dependent on the rental calculation. An accountant will be able to advise you appropriately on this matter.
Who pays for SDLT?
SDLT is paid by the tenant. When SDLT is due the tenant must complete and submit a declaration form SDLT1 to the Inland Revenue within 30 Days of the date the tenancy commences or the date the lease was executed, whichever is the earlier.
The first rent payment, deposit and check in costs must be received in cleared funds no later than 3 working days before the check in date. This is required by direct bank transfer.
Cash payments are not accepted.
Keys will not be released until cleared funds are showing in our bank account and all the paperwork has been signed by all tenants.
DURING THE TENANCY
After the initial payment, rent must be paid by one standing order for each payment period. The appropriate form will be given to the tenant upon signing the tenancy agreement. It is the tenant’s responsibility to submit the completed form to their bank in good time and to provide us with a copy as proof that payment arrangements have been put in place with their bank. We require this proof before access can be allowed to the property at the commencement of the tenancy. To ensure that the rent arrives on the correct day, it is important to date the standing order at least two days before the rent is due.
The tenancy agreement makes the tenant responsible for the payment of gas, electricity, telephone and water charges. It is important that the tenant registers with each of the local utility companies directly in order to ensure continuity of service, and billing in the tenant’s name. The television licence, burglar alarm, cable TV charges and any local parking permits are also the tenant’s responsibility.
The tenant is liable for paying council tax whilst tenants are occupying the property so it is important that tenants register with the local authority.
The landlord is responsible for providing buildings insurance, and contents insurance for his own belongings. Tenants are required to make arrangements to insure their own contents and valuables, plus accidental damage to the property caused by the tenants.
The tenant will be informed by letter when they move in whether we, the landlord, or the landlord's other representative will be managing the property during the tenancy.
Periodic property visits
If we are managing the property, we are instructed by the landlord to carry out property visits to ensure the property is being maintained. For this reason it will be necessary to arrange periodic property visits under the terms of the tenancy agreement. It is important that these visits are organised in advance in order that tenants are put to the minimum inconvenience.
We will inform tenants when we will be visiting. We hope that the tenant will be present during the visit, however, if tenants are unable to attend, we may use our management keys for access.
Gas & electrical inspections
During the tenancy it may be necessary for us to arrange gas and/or electrical safety inspections. If tenants occupy a property with British Gas landlord cover on the gas boiler, the tenant or a representative will be required be present at the property for inspections, to facilitate access. British Gas will not collect keys to visit a property.
Natural end to a tenancy
During the last two months of the period of the tenancy, the tenancy agreement allows for access by the landlord and/or the landlord's agent, to show the property to prospective new tenants.
These can be discussed with Marshalls or your landlord.
INVENTORY CHECK OUT
Tenants are responsible for the costs of an inventory clerk conducting the check out. We will advise this cost at the time. If tenants choose not to be present at the check out, the inventory clerk will sign the inventory and schedule of condition on their behalf.
Keys must be handed to the inventory clerk at this appointment, if tenants are not present at the check out they must ensure that all keys are delivered to Marshalls before the appointment.
The deposit return will be carried out in accordance with our standard procedures.
Responsibilities when vacating the property
Failure to comply with these requirements could seriously delay the return of the deposit and result in deductions being made from it. The tenancy agreement makes tenants liable to pay the agent's reasonable fees and disbursements for arranging the making good of any breach or non-compliance by the tenant.
At the end of a tenancy it is important to cancel the standing order for payments of rent. This is the responsibility of the tenant. Where payments are received from ex tenants after the tenancy has ended, they have vacated the property or there are no outstanding monies due, an administration charge will be made to cover the costs of administering a refund. This charge will be taken directly from any refunds due.
A deposit equivalent to at least six weeks rent is held for the duration of the tenancy to offset any costs required to remedy the failure of the tenant to fulfill the conditions of the tenancy agreement.
If Marshalls are instructed by the landlord to hold the deposit, we shall do so under the terms of the tenancy deposit scheme where the tenancy is an Assured Shorthold Tenancy.
Tenancy Deposit Scheme (TDS)
What is the Tenancy Deposit Scheme?
The tenancy deposit scheme (TDS) protects the deposits that tenants give to private landlords. It also offers a way of resolving disputes about returning those deposits.
Tenancy deposit protection schemes apply to all assured shorthold tenancies that started on or after 6 April 2007 in England and Wales where the annual rent does not exceed £100,000 year.
Under the Tenancy Deposit Scheme:
- Deposits will be protected during the tenancy;
- The person or organisation holding the deposit must return it to the tenant promptly at the end of the tenancy, provided there is no dispute.
- Any dispute about returning it will be dealt with fairly by an independent case examiner;
- The independent case examiner will decide the dispute quickly, and the deposit will be paid out without unnecessary delay. Tenants can check if their deposit is registered with the TDS by visiting www.tds.gb.com and going to the ‘Is my deposit registered?’ page. Tenants enter their unique tenancy code or their surname, the amount of the deposit, the tenancy postcode, and the date their tenancy started.
What are the legal requirements?
The Housing Act 2004 states that any landlord or agent who takes a deposit from a tenant for an assured shorthold tenancy must register it in an approved tenancy protection scheme. Landlords or agents who fail to do this within 30 days of receiving the deposit can be fined up to three times the value of the deposit as a result of court action. They also cannot serve a section 21 notice to end a tenancy and regain possession of the property until:
- The deposit has been repaid; or
- Legal proceedings for failing to protect the deposit have ended.
The Housing Act also states that:
- The tenant must be told which tenancy deposit protection scheme their deposit is held in;
- The deposits must be in money;
- Landlords who do not give the tenant the information they are required to under the law about protecting their deposit will not be able to issue the tenant with a Section 21 notice;
- The landlord or agent must give the deposit to the scheme operators when asked to do so;
- Each scheme must have procedures for resolving disputes without legal action (using ‘alternative dispute resolution’), but the parties can go to court if they prefer.
If there is no dispute, the deposit holder must return the undisputed deposit amount to the tenant within of being asked to repay it.
The Act allows for deposits to be held in:
- A custodial scheme – the money is held by an independent third party outside the landlord’s control
- An insurance-based scheme – the money is held by the landlord or their agent, provided they have suitable insurance arrangements.
Each tenancy deposit protection scheme has its own rules. The rules for TDS are set out in the following documents:
- The Tenancy Deposit Scheme for Lettings Agents and Corporate Landlords: Membership Rules
- The Tenancy Deposit Scheme for Landlords: Membership Rules
- The Tenancy Deposit Scheme Rules for the Independent Resolution of Tenancy Deposit Disputes
You can view these documents at www.tds.gb.com
Who can join the Tenancy Deposit Scheme?
The Tenancy Deposit Scheme is open to landlords and regulated letting agents offering residential property for rent. They will be asked to provide relevant information – as set out in the TDS rules – to determine if they can be accepted as members, and what their subscription will be. Landlords and letting agents who wish to join must be members of one of the approved bodies mentioned below.
What is an approved body?
An approved body is any professional body, accreditation scheme or trade association that TDS has approved to give their members a streamlined application process and a reduced subscription. Approved bodies are also expected to take appropriate disciplinary action against their members who fail to comply with TDS rules. The following are all approved bodies: The Association of Residential Lettings Agents, Royal Institution of Charted Surveyors, the National Association of Estate Agents, the Approved Lettings Scheme and the Law Society.
How are deposits held and protected?
Normally, the tenant and landlord decide together where the deposit will be held, helped by any letting agent who is involved. The deposit-holder must be a member of the Tenancy Deposit Scheme. If there is a dispute about the deposit, the landlord or letting agent can try to resolve it. If that fails, any of the parties – landlord, agent or tenant – can take the dispute to the independent Case Examiner, who will:
Appoint an adjudicator to help consider the evidence provided by the landlord, agent or tenant; and
Aim to issue a decision within 28 days of receiving all the necessary papers.
If there is a dispute, what happens to the deposit?
The member should send the disputed deposit amount to TDS. After the independent Case Examiner has considered the matter, TDS will make a payment to the tenant according to the independent Case Examiner’s instructions.
If the member does not send the disputed deposit amount to TDS, TDS will take legal action to recover. TDS has a special cash fund that enables the independent case examiner to continue adjudication in these circumstances. If the member cannot pay what the independent case examiner requires, because it has become insolvent, TDS will pay instead and make claims to insurers.
How are disputes resolved?
The tenant has 20 working days to tell the member that they wish to dispute their proposed allocation of the deposit, and the member has 10 working days to resolve it.
If the dispute not resolved, the parties decide if they want to go to court, or to have the independent case examiner deal with it. This is what most people prefer. Either way, the disputed deposit must be sent to TDS.
The party who wishes to put the dispute to TDS must use the Notification of a Deposit Dispute form to state details of dispute, and provide any relevant supporting documents.Whoever is holding the deposit must send the disputed amount to TDS.
The Independent Case Examiner, working alongside TDS, will copy the details of the dispute to other parties, giving them 10 working days to send in their side of the story.
The independent Case Examiner will appoint an adjudicator to help it issue a decision within 28 days of receiving all the necessary paperwork.
The disputed amount will be paid out according to the independent case examiner’s decision with a further 10 working days.
Why is it better to resolve a dispute through the Independent Case Examiner than going to court?
Deposit needs to be resolved quickly and cheaply. Tenants usually need the money as a deposit on their next property, and landlords need to know how much will be available to spend on things like redecoration, damage or repairs. Going to court take time and can be expensive and stressful.
The independent case examiner’s successful adjudication process is based on an expert assessment of documentary evidence (which can also include photographs and video).
Do all landlords and agents have to join TDS?
No. they can join of the two other tenancy deposit protection schemes: The Deposit Protection Service and MyDeposits.
How much does it cost to join TDS?
You can find the current subscriptions for agents and landlords on the TDS website.
Provisional subscriptions for corporate landlords are available on application.
Where members submit data in hard copy to be entered on the tenancy database, there will be a charge for each document submitted. The data will not be entered until the fee has been paid.
Management of TDS
TDS is overseen by a Board, which is responsible for the operation and financing of the business. The board does not have any role resolving disputes.
Contact Details of TDS
Tenancy Deposit Scheme
PO Box 1255 Email: email@example.com
Hamel Hempstead Web: www.tds.gb.com
Herts HP1 9GN
Tel: 0845 226 7837
Fax: 01442 253 193
TAXATION ON NON-RESIDENT LANDLORDS
Non-resident landlords are persons:
who have rental income, and
whose 'usual place of abode' is outside the UK
This includes anyone who leaves the UK for more than 6 months even though their local tax office may continue to treat them as a resident in the UK following their departure.
Members of HM Armed Forces and other Crown Servants including Diplomats are treated no differently from any other non-resident landlord. So if they receive UK rental income and have a usual place of abode outside the UK the NRL Scheme applies to them.
When rent is paid to the landlord via Marshalls we ensure all of the tax matters relating to the landlord are dealt with correctly and that the tenant has no liability. If the tenant pays the rent directly to an overseas landlord (as defined above) and the landlord does not pay the correct tax to HMRC it is possible that HMRC will issue a tax demand to the tenant.
This problem is avoided if the landlord has an Approval Notice issued by HMRC for rents to be paid without deduction.
The Deposit is a sum of money paid by the tenant and held against any damages, or dilapidations to the property caused by the tenant, or for rent arrears or other breaches of the tenancy agreement by the tenant. The tenant will pay a deposit at the commencement of the initial term. We will hold the deposit as stakeholders pending the satisfactory termination of the tenancy.
A Guarantor is someone who guarantees all the obligations of another person. A tenant's guarantor is liable for all the tenant's obligations under the tenancy agreement.
The Independent Case Examiner of the Dispute Service.
An offer is the price and attendant conditions made by a prospective tenant who wants to rent a property.
The term stakeholder, in law, is a third party who temporarily holds money while its owner is still being determined.