With moderate fanfare the Ministry of Housing, Communities and Local Government (“MHCLG”) issued a new set of documents on 26 June, the housing ‘how to’ guides.
In addition to “How to Rent”, which was launched in October 2015, there are now three additional guides:
• How to rent a safe home – a guide for current and prospective tenants
• How to let – a guide for current and prospective private residential landlords
• How to lease – a guide for current and prospective leaseholders
The new guides have no legal effect, but it is a requirement for landlords to provide a copy of “How to Rent” to their assured shorthold tenants. It is also a requirement to serve a new copy if the guide has been updated whenever a tenancy is renewed or becomes statutory periodic at the end of a fixed term.
That might sound simple enough, but it can be very difficult to keep track of which guide is in force at any particular time (and in practise any landlord who wishes to serve a section 21 notice would be well advised to provide their tenant with a new copy of the ‘How to Rent’ guide before serving the notice). To make matters worse, the MHCLG have just updated the version of How to Rent published on 26 June to correct an apparent error in the title.
As highlighted by Richard Tacagni of London Property Licensing the version of the guide published on 26 June was titled “How to… Rent A guide for current and prospective tenants in the private rented sector in England”. This was a potential legal problem because the regulations which give effect to the “How to Rent” guide refer to it as How to rent: the checklist for renting in England.
The new version of How to Rent has been published under the proper title and contains at least one other minor amendment. Any landlord who has provided a copy of How to Rent since 26 June 2018 should provide their tenants a copy of this new version, and of course the new version should be used from now on.
However, two thorny problems remain.
Firstly, if in fact the original version published on 26 June was legally valid (despite the incorrect title) then that was the version in force between 26 June and 9 July; if a tenancy began on say 28 June 2018, the original version (which is no longer available on the Government’s website) is technically the one which should be provided to the tenant. It is only thanks to housing law enthusiasts that older version of the guide are retained and made publicly available.
Secondly, the regulations refer to a guide published by the Department for Communities and Local Government (“DCLG”), which no longer exists. Can MHCLG validly issue a “How to Rent” Guide? There are good reasons to think not. The powers of the Secretary of State for Communities and Local Government were transferred to the Secretary of State for Housing, Communities and Local Government in March 2018 by an Order-in-Council made under the Ministers of the Crown Act 1975. That order also amended some references in statute from DCLG to MHCLG, but not those relating to the “How to Rent” guide. The department and the Secretary of State are legally distinct; Government departments have no separate legal personality distinct from the Crown whereas the Secretary of State for Communities and Local Government is incorporated as a ‘corporation sole’. If the regulations had said landlords must provide a guide published by the Secretary of State there would be no problem, but that is not what happened. This could mean either that the “How to Rent” guide published in January 2018 remains the version currently in force, or no version is currently in force at all.
What should a landlord do?
If there is any doubt about which version applies the safest thing to do will be to provide the tenant with every version of the guide which might apply. For a tenancy which began on 1 July, that is arguable three separate versions. Landlords with large portfolios in particular will want to either seek agreement from their tenant to use email to reduce the number of trees felled needlessly.