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Stephensons Solicitors are part of the expert panel. Subscribers can write in to ask for advice. Here is a question from Ann, a JDP subscriber to Andrew from Stephensons. If you want to ask a question, just click here.
Question from Ann
Thank you very much for your interesting blog, Julie.
We have someone stuck abroad because of lockdown and we cannot access the property to do the inspection. EIRC.
They are up for tenancy renewal on Jan 1, 2021. Is that considered a new agreement and then the Inspection needs to be done before the renewal.
Or is it under ‘current tenancy’ so we can do the inspection next year?
Answer from Andrew, Stephensons Solicitors
A tenancy renewal is a new contract/agreement so the EICR check will need to be completed before they issue a new tenancy in January.
If they opted against a renewal and allowed the tenancy to become statutory periodic after the fixed terms ends, they could attempt to argue that it is an existing tenancy. As I say, this is arguable – I cannot say for certainty what will happen from an EICR perspective as it is brand new. However, for example in instances where a landlord fails to protect a deposit (therefore tenants can claim 3x deposit as damages) I have seen tenants argue that a periodic tenancy should be treated as a new agreement and if the deposit remains unprotected once a tenancy becomes periodic, the tenant seeks 6x the deposit (3x for breach of the fixed term, plus 3x for the breach of the periodic tenancy). Plausible that the same could apply here.
If it is the tenant that is stuck abroad, I would hope that the landlord would be given leeway as there appear to be mitigating circumstances. If the AST allows the landlord to gain access (notice must normally be provided) and the tenant is happy for the landlord/its agent to go into the property and complete the check that would be ideal. Otherwise, they will be left will little option but to get it done before April once the tenant is back in the country. In the meantime, it is a decision for the landlord whether they want to issue a new tenancy and clearly be in breach of the EICR inspection requirements or let it become statutory periodic for a period of time until the check can be completed and then issue a new tenancy after it has been done.
There no risk free answer I’m afraid, but hope this helps.
If you want to ask Andrew a question, just click here.
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