Property solicitor Len Boreland
With new Energy Performance Certificate (EPC) requirements approaching for landlords, property solicitors Len Boreland and Martin Whitehorn discuss the various notices that lawyers assist outgoing and incoming landlords with when disposing of and acquiring tenanted property in advance of the obligation to have an EPC with a ‘C’ rating, whether leasehold or freehold.
FOR THE OUTGOING LANDLORD
Martin: Under the Landlord and Tenant Covenant Act 1995, the outgoing landlord should send a written notice (a “Section 8 Notice”) to the tenant(s) applying to be formally released from the landlord’s obligations under the lease or tenancy agreement. The Notice can be given at any time before or up to 4 weeks after the transfer of ownership. In the absence of a specific release, the outgoing landlord will remain liable to carry out the landlord’s obligations.
Property solicitor Martin Whitehorn
Len: The tenant(s) may either accept the Section 8 Notice or object to the landlord’s release by serving written notice on the outgoing landlord within 4 weeks of the date that the Notice was given. The Court would then have to decide whether it is reasonable for the outgoing landlord to be released unless the tenant(s) withdraw the objection.
FOR THE INCOMING LANDLORD
Len: Under the Landlord and Tenant Act 1985 if there is a change of landlord, the new landlord must provide the tenant(s) with written notice of the new landlord’s name and address (a “Section 3 Notice”). The Notice must be given within 2 months after the transfer of ownership or, if later, before the next repayment date.
This requirement still applies even where the outgoing landlord has informed the tenant(s) in writing of the change of landlord. Until the Notice is given, the outgoing landlord will remain liable for any breaches of the landlord’s obligations in the tenancy agreement. Further, failure to serve this Notice is a criminal offence in the UK, considered a summary offence (an offence at the magistrate’s court) and incurring liability for a fine up to ‘level 4’ i.e. up to £2,500.
Martin: There is additionally a ‘Section 48 Notice’. This Notice is required under the Landlord and Tenant Act 1987 which provides the tenant(s) with details of the current landlord’s address in England or Wales. Until this Notice is given, the rent and other sums, for example service charges, are not lawfully payable by the tenant(s).
Len: We have not gone into the ‘Right of First Refusal’ Notices required where the building sold or transferred contains 2 or more residential flats held on long leases, but that is probably best discussed another time.
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