The Covid-19 pandemic is affecting us all, and the health and security of our customers is our priority. We have had many questions from tenants, landlords and letting agents and will use this page to update you with the latest information. Please contact us if your query is not answered here and we will do our very best to help.
We would like to stress that we are an impartial organisation and do not believe it is our place to give any advice beyond which is clearly stated by the government or law. It is ultimately up to the parties to the tenancy agreement how they wish to proceed in any given situation, and hope that the information here provides a helpful foundation.
We wish all our customers and their families the very best of health during these unprecedented times.
Update – Wednesday 13th May 2020: Regulations covering travel restrictions in England are being relaxed from Wednesday May 13th 2020, allowing lettings agents to carry out aspects of the lettings process. The Government’s Housing Secretary, Robert Jenrick confirmed that all work must be completed in line with social distancing and safety rules.
This applies to England only and restrictions are still in place in Wales, Northern Ireland and Scotland.
For further government guidance, please click here.
“I am a landlord and have decided to hand over the keys to the property early, before the tenancy start date, in case of further lockdown.”
We recommend that you retain an audit trail to demonstrate that you have handed in the keys early and this should be accompanied by an up to date inventory.
Where the inventory is dated some time before the tenancy start date, we would usually question what has happened during that time which could have affected the condition of the property, such as contractors going in and out.
A few days is generally fine in ordinary times anyway, but during the pandemic it may be more practical for the check-in to be done weeks in advance. Retaining a simple audit trail in these situations would help with any dispute many months or years down the line.
“My tenants are about to move in but I cannot be there to do an accompanied check-in, go through the inventory, etc.”
Our ‘normal’ approach is that it’s not mandatory to have the tenant present at check-in (or indeed check-out, although in ordinary times it is good practice to give them the opportunity to be there). As long as the tenant has been given an inventory and schedule of condition and been given a period of time to review, comment on and return the document within a set time period (we suggest 7 days, and 48 hours to raise any cleaning issues), that would suffice.
We highlight the importance of keeping an email/audit trail if the documents are sent to the tenant rather than delivered and acknowledged in person. If you haven’t received the document back within that time period, a quick email to the tenant advising that they were given 7 days to review and return and that you note that as you have not received any response the document is now a full and binding reflection of the content, condition and cleanliness of the property at the start of the tenancy. This highlights to both parties that this is now an agreed document about the content, condition and cleanliness of the property.
“I am looking to sign a new tenancy agreement with tenants in a couple of months’ time. What happens if they are not in work so cannot afford the deposit?”
The landlord can agree that a deposit is not initially required but that it will be due at a defined point in the future. It is also possible to take a deposit in instalments. The landlord should protect any amount received within 30 days of receiving it, whether an instalment or full amount, and issue the prescribed information accordingly.
“I am reducing my tenant’s rent – can I claim this from the deposit when the tenancy ends?”
Landlords should pay attention to the wording used when offering reductions in rent so that it is clear that the rent still falls due in the period, but that the landlord has agreed to defer part of the payment to a defined time in the future.
The key issue here is whether the rent is genuinely just being deferred and can therefore be collected at a later date, or is being cancelled so that the tenant does not ever have to pay it.
Care should be given over the wording, whether in an updated tenancy agreement or simply over email. If they can show their intention and the agreement of the tenant, they would be able to claim it from the deposit if any shortfall wasn’t repaid before the eventual end of the tenancy.
“I am reducing my tenant’s rent on a temporary basis and am not deferring any shortfall, simply absorbing the reduction. Will the deposit cap be an issue?”
The Tenant Fees Act in England, sets out that the deposit cap is based on the value of the rent at the time of the tenancy’s grant, renewal or continuance. This means that any reduction in rent, after the tenancy agreement is signed, will not impact the amount of deposit permitted to be held unless a new or renewed tenancy agreement is created. If a new or renewed tenancy is agreed, and at this time the rent is reduced, then the deposit cap will come into effect and the deposit value will need to be reduced accordingly.
We recommend that the landlord maintains a clear audit trail of the reason for the rent reduction, making clear how long the reduction is for and that normal rent will be due from that date unless a further reduction period is agreed. For completeness and avoidance of any doubt that may arise in the future, the landlord should get the tenant’s agreement in writing.
You can find out more information about the deposit cap by visiting: www.depositcap.com
“I am not yet leaving my tenancy but I cannot pay this month’s rent. Can I use my deposit to pay it?”
No, the tenancy must have ended before any party may use the end-of-tenancy processes.
The tenancy deposit protection legislation is written in a way that makes it clear that the deposit is for use at the end of the tenancy, not mid-tenancy.
For example, Section 1(3)(b) sets out that an Insured scheme is one under which deposits are retained by the landlord on the basis that, at the end of the tenancy deposits are agreed between the tenant and landlord and repaid to the tenant or, if not agreed and not repaid, paid to the deposit scheme when requested (as part of the dispute process. See http://www.legislation.gov.uk/ukpga/2004/34/schedule/10 .
Further, Section 4(1)(a) sets out that a Custodial scheme is one in which the landlord or tenant may apply, at any time after the tenancy has ended, for the whole or part of the relevant amount to be paid to him. See http://www.legislation.gov.uk/ukpga/2004/34/schedule/10.
The landlord should maintain a record of rent payments that were due and not paid. This can be in the form of a simple rent statement which can be used as evidence at the end of the tenancy if the rent remains unpaid.
“I am a tenant and have lost my job. I am aware of the eviction ban and that tenants and landlords should work together to establish an affordable repayment plan after the 3-month period. Can my landlord claim the rent from my deposit instead, at the end of the 3 months?”
While the tenancy is still ongoing, the landlord should not use the deposit for the arrears and should, under the government guidelines, work with the tenant to establish a payment plan.
If the tenancy has ended, whether through one party giving notice or by agreement, the landlord could claim the deposit to put against the rent arrears that have built up.
“My tenant is a student and is leaving the property. Do they have to pay rent?”
Unless the landlord has agreed that rent is not due, or agreed to end the tenancy early, rent will still fall due and the tenant should still pay rent until the end of the fixed term or notice period. There is generally no distinction between students and other tenants in this scenario.
“My tenancy is about to end but I am self-isolating so cannot go to the property to do the check-out.”
We suggest that landlords and agents are creative with the tools that are available to them – perhaps you could ask the tenant to do a video call with you when they are about to leave the property for the last time, and do a ‘virtual’ walk-round. The agent/landlord can then determine, in a general sense, if the property is reasonably clean and tidy.
Whilst not ideal of course, at least you would have an indication of the general condition of the property and be able to release the deposit.
Any damage or cleaning that is identified can be logged in the usual way and a check-out report can note that the inspection was done remotely.
“My tenant is moving out and I am concerned that they have been self-isolating so may have contracted Covid-19 and that I could expose myself or others to the virus.”
In ‘normal’ times, a check-out report should be contemporaneous in order to show the condition of the property as close to the tenancy end date as possible, and to avoid any doubt about cleaning or damage being caused by anyone other than the tenant (for example, contractors or prospective tenants).
During the pandemic, we are relaxing this to suggest that the check-out should be completed within a maximum of 4 weeks from the tenancy end date. You should keep an email trail advising the tenant that you will be unable to conduct the check-out inspection immediately so there will be a delay with the return of their deposit. That would give time for any potential trace of the virus to die off in the property before you access it.
It is important to note that these are Arrangements which will help the adjudicator understand why the timescales are well outside norms. It is not a guarantee that the outcome will be exactly the same as it would have been if the reports had been done in normal circumstances.
If you are still unable to conduct a check-out within that timescale, unfortunately you would have no basis on which to make a claim so should release the deposit back to the tenant (other than rent or other issues that may have arisen during the tenancy for which you do have evidence).
Update 17th April 2020: following the latest government update (16th April 2020) that the current restrictions will remain in place for longer than the initial 3 weeks period), we recognise that agents and landlords may have difficulty in conducting check outs within the one month timescale previously suggested. Where that is the case and no check out is yet available, we encourage continued discussion with the tenant about the deposit. If a dispute is raised with TDS, we are happy to facilitate discussion between the parties to reach an agreement about the deposit, including guidance on cleaning charges and our approach to any items of damage. If a formal check out needs to be delayed further, we will consider any evidence sent to us on a case by case basis when it is available. The weight that can be attached to the evidence may vary depending on the time that has passed between the end of the tenancy and the check out.
“My tenant moved out last week and the check-out has been completed but I cannot get estimates for work due to the availability of contractors.”
Estimates are useful but not essential where the necessary work is clearly demonstrated in the check-out report and the associated costs are reasonable and reflect the work required. This is our approach even in ‘normal’ times.
It will be easier to quantify some costs than others. For example, a landlord may be able to determine the number of hours of cleaning required, and a general idea of the hourly charge for a cleaner. It may be more difficult to quantify costs where they are unusual such as to fix a kitchen worktop. Some contractors may be open to providing email estimates in the meantime, based on your description of the issue.
“I am an agent and now working from home. The check-out was done before the government advised us to work from home, but it is in the office and I cannot access it to be able to send to the tenant or to determine if a claim on the deposit should be made.
I use the Insured scheme and understand that the tenant can raise a dispute via TDS Insured if they have asked us to return the deposit and 10 days have passed without any agreement.”
We would encourage the parties to come together and see if there is any further negotiation they can do given current events, in order to find a compromise that works for both parties.
If no agreement can be reached, tenants and landlords/agents can use the service offered by TDS to help reach an agreed solution without the need for evidence to be submitted.
While we are unable to prevent a tenant from raising a dispute after 10 days, we may be able to offer an extension to the evidence-gathering timescales. We will look at this on a case-by-case basis so please contact us if you are in this situation.
“One of my tenants in a joint tenancy is self-isolating in the property as he is experiencing symptoms of the virus. The other tenant has now decided to leave the tenancy completely due to her health being in danger. She has handed back the keys and says she will not be returning. I am prepared to let the tenant end the tenancy, but do not think I will find a replacement tenant any time soon. The deposit would not cover one month’s rent. Can I claim rent in lieu of notice from the deposit?”
If the tenancy is a statutory periodic tenancy, one joint tenant giving notice brings the entire tenancy to an end. A joint tenant cannot bring a fixed-term tenancy to an end without the agreement of the other parties.
A deposit is held for tenancy as a whole so the landlord can use the deposit against any unpaid rent at the end of this tenancy, regardless of which tenant didn’t pay their ‘share’ of the rent.
The landlord should enter into a new agreement with the remaining tenant who will be responsible for the full rent, unless the landlord agrees for partial rent to be due until they are able to find a replacement joint tenant.
The landlord will no longer have a deposit if it has been used for the outgoing tenant’s rent in lieu of notice, so may want to seek a new deposit from remaining tenant for new tenancy.
“Should we be doing a checkout inspection if my tenant moves out in the lockdown?“
There will be cases where tenants have recently left a property and where the landlord needs to carry out a checkout inspection to assess the condition of the property at the end of the tenancy.
In such cases it is clear that agents/landlords should not be conducting checkout inspections with tenants in the property and we have suggested that tenants might be asked to do a video tour of the property before they leave and submit this to the agent/landlord.
However where this has not happened, then the landlord/agent will need to consider whether it is safe to conduct a property inspection of the empty property. The Government’s guidance suggests that inspections of empty properties are possible in urgent cases [https://www.gov.uk/guidance/government-advice-on-home-moving-during-the-coronavirus-covid-19-outbreak].
In in our view any such inspection should only take place some time after the property has been vacated to minimise the possibility of any virus transmission. Agents will also have their own health and safety policies to consider.
If there is a dispute between the landlord/agent and the tenant about the condition of the property where there is not yet a checkout report, TDS will review what evidence, if any, is available. In recent weeks we have been successful in negotiating a settlement between the parties in the absence of a checkout report.
“I use the Custodial scheme. The other party has not responded to my repayment request and I must now submit a statutory declaration. I understand that this must be signed by a solicitor/notary public/commissioner for oaths, but this is not practical or possible at the moment.”
The simplest solution here is to obtain the response of the other party. If you are unable to submit your statutory declaration, TDS will call the other party to try to get their agreement or response over the phone. We will not do this automatically, so please contact us if you would like us to try this.
[Please note that the statutory declaration process is not TDS policy – it is a legislative process that determines that original documents must be sent to us.]