How to Rent Guide – a bit of a snafu

There is a new version of the MHCLG ‘How to Rent Guide’ out (apparently updated on 6 July 2018). Though according to MHCLG it dates from 26 June 2018. This is because there was a bit of a mess up with the previous version. (Update. During the course of this afternoon, after this post and others making a fuss, MHCLG have updated the page to show it was changed on 6 July, but not explained any of the things set out below.)

Our thanks to London Property Licensing (@lplicensing ) for spotting the previous problem and apparently causing the correction.

In short, the original 26 June 2018 guide was entitled “How to… Rent A guide for current and prospective tenants in the private rented sector in England” – which is a change from the previous “How to rent: The checklist for renting in England”. All well and good except that the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 are very precise on the ‘prescribed information’. The Regs refer to a “document entitled ‘How to rent: the checklist for renting in England’, as published by the Department for Communities and Local Government, that has effect for the time being”.

There is obviously a risk that the re-titled How To Rent guide would be found not to be the guide required under the regulations.

So, the Guide has today been re-titled so that it is once again “How to rent: the checklist for renting in England”. The only problem is that the MHCLG page insists that this is the Guide from 26 June. It isn’t. What they should be saying is that anyone who provided a copy of the How to Rent Guide between 26 June 2018 and today should immediate provide a new copy of the version now up on the MHCLG site (because there is the risk that the original 26 June version would be found not to meet the requirements of the Regulations).

Also changed was a sub heading on page 6 that previously stated that landlords ‘must also provide you with’ a record of any electrical inspections. This was, for now, wrong in law, and has been changed to say ‘should provide you with’. Or at least it has in the PDF version. The HTML version still has ‘must’. So now the PDF and HTML versions are different…

New version and all the previous versions are on our ‘How to Rent’ archive page.

For a possible further hitch involving the AST regs, and the DCLG being no more (as it is now published by MHCLG), see this article. I’m not sure how far that goes, but it is another instance of the problems with overly specific regulations (as the AST Regs also have this big hitch come 1 October 2018).

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged , .

25 Comments

  1. If one want to be pedantic, neither the old “How to rent ✓ The checklist for renting in England” nor the new corrected “HOW TO… RENT The checklist for renting in England” are a match to the regulations’ “How to rent: the checklist for renting in England”.

    And of course it’s now published by Ministry of Housing, Communities and Local Government rather than the regulations’ Department for Communities and Local Government.

    • A missing colon is a different order of things to a different subtitle. And likely that ‘DHCLG’ would be read to include its successors. But yes, these are the problems of overly specific hard coding in regulations.

  2. On the Government web site:

    The PDF version says “July 2018” at the bottom of page 3.

    The HTML version says “26 June 2018”.

    Does this mean that only the HTML version should be used for 26 June to 8 July?

    • The MHCLG page still says ‘last updated 26 June 2018’. The HTML version has also been changed. So anyone who provided the guide between 26 June and 8 July should provide it again with this version.

  3. We are onto the new version and there are two further changes inside the guide with the “must” provide electrical safety check and “should” provide as it is not statutory. Also the link to Rental Raters has been removed.

    If we accept the actual June version was not valid would it not be true to say that the correct version to use on, say, 30 June was in fact the Jan 2018 version not the July version, though I accept this highlights the other question of if the “time being” means the time it was served or the time it should have been served!

    We noted the 26 June last edit date on the web. The file edit date is the 28 June and the PDF file name says Jun 18 even if page 2 says July 18. I think some clarity would be a good idea!

    • Quite.

      Yes the ‘should’ provide electrical safety check has been corrected. But it hasn’t been in the HTML version!

      It is a jump to say the original 26 June version wasn’t valid for definite. But there is a clear risk that is might be found not to be. Hence the recommendation to serve this version now for anyone who served the 26 June version previously.

  4. Pingback: New How to Rent Guide Published (July 2018) | GRL Landlord Association

  5. They’ve updated the “Last Updated”. Now wondering when they’ll change the filename of the pdf.

    • So they have. The HTML version is still different to the PDF, though. Still got the ‘Must’ on the electrical safety cert wrong.

      *Sighs*.

  6. How to Rent is rapidly becoming, the new ‘Where’s Wally?” or “Whats wrong with this ;picture?” One to keep the kids amused on a long car journey haha. A pain for landlords and another homelessness prevention tool.

  7. The whole document is sloppy editorial riddled with errors and inaccuracies here is just one example:

    Re the bullet point on Page 6 that starts ‘A record of any electrical inspections’, I initially interpret to mean the periodic inspection of the electrical installation that provides an Electrical Installation Condition Report (EICR) but the next sentence refers to ‘appliances’ which is risk based (no fixed periodicity) inspection and testing of equipment (not the installation) and then refers to ‘checks’ (as distinct from inspection) which may be a reference to a visual check of the installation that provides a Visual Condition Report (VCR).

    The whole thing is a mish-mash!

    • Given that there is currently no requirement to either do the checks/inspections or provide details to the tenant, that may not be the most important section…

    • Imagine being a landlord of a tenancy granted between 26 June and 8 July, who’s now trying to figure what version to give to be safe whatever’s judged to be the correct interpretation by the court.

      July 2018 – the current version published and made available by MHCLG;
      June 2018 – the version in effect on the date the tenancy was granted;
      January 2018 – the version in effect on the date the tenancy was granted if the one from June 2018 doesn’t count;
      February 2016 – the most recent version published by DCLG if none of the ones from MHCLG counts?

    • Well the solution is easy ;-)

      Serve the July 2018 one, now. And just in case serve the February 2016 one as well. Which of course, you can’t get from the MHCLG site. I don’t think the ‘version that was in effect when the tenancy was granted’ is really a point – at least as far as being able to subsequently serve a section 21 notice goes. So long as it is the current one at the date it is provided to the tenant.

    • Re Giles and “in effect when tenancy was granted”

      I asked my MP to raise with the Department the problems with this publication, and i have received a response from them.

      In one paragraph they say that “for the time being” means “most up-to-date version when entering into a tenancy agreement”, so not necessarily current on first day of tenancy.

      Then in a later paragraph they say that any landlord who issued the 26 June version believing it to be the correct one should provide their tenant with the 6 July version.

      Clearly at least one of those guidance statements must be wrong, and it highlights the ambiguity of the regulation..

      Regarding the issue “can MHCLG issue a valid How To Rent guide”, the response said:

      “the publication of the How To Rent guide can be badged in the name of the Department, but be in exercise of the Secretary of State’s powers. As functions were transferred from the DCLG to the MHCLG, when the name was changed, the Department under its new name can carry out the Secretary of State’s powers on their behalf. Therefore a copy of the guide issued by the MHCLG is valid under the associated regulations.”

      Do you think this would stand up in court, given that the Anthony Gold article seems to say that the power was given to the Department, not the Secretary of State, and this power was not explicitly transferred?

    • I don’t think “in effect when the tenancy was granted” has too much importance, to be honest. The only situation where that will bite is where the landlord/agent served an earlier version at the start of the tenancy, then attempts to rely on that. Easily rectifiable by simply serving the current version before any s.21 notice. But my advice that anyone who served the 26 June version should promptly serve the 6 July version was because the 26 June version arguably wasn’t serving the Guide at all.

      ON the MHCLG/DCLG issue. I am less convinced than my AG colleagues that this is a problem. DCLG is effectively the same entity as MHCLG. However, MHCLG are wrong – the regulations don’t provide for the Secretary of State to issue the How to Rent Guide, but DCLG. If the Regs had said the Secretary of State, there would have been no problem at all. But they didn’t. So, there is the risk that someone will successfully run that argument. My own view is that it is a stretch, but I wouldn’t rule it out. (And I have raised it with MHCLG, with whom I am currently on good terms…)

  8. I also note they have removed ‘Rental Raters’ from the column ‘Help and advice’ under ‘Further sources of information’

    Perhaps more importantly though, on the back cover there is a ‘product code’. I’m not sure if this an ISBN number (it’s not, I’ve since checked), which is the same on both the June and July versions, This is different to the January 2018 version, which is itself different to the February 2016 version (although this code is common across the preceding October and May 2015 editions). I’m wondering if each document should have its own unique ‘product code’ and they’re forgetting to update it with each version…?

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  10. What else do you expect from a Govt department that is in total disarray and the guv’nor of which gets moved on after a tenure that will soon be measured in weeks, not months.

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