That is the question the Courts have firmly answered over recent years, resulting in solicitors having to advise their clients about the risks of failing to utilise alternative means of dispute resolution. Read on to find out more…

Successful mediation

When a commercial dispute goes to Court, the Judge will proactively enquire whether the parties have tried to resolve a dispute or narrow the issues between them.

Businesses regularly make commercial decisions leading to some form of compromise. Mediation isn’t therefore, introducing a new concept and is an opportunity to reach a pragmatic solution to a problem that can move those entrenched in a position to an acceptable solution.

Many of the solutions from mediations wouldn’t have been possible within the restrictions of the court room, due to the narrow focus on the issues. Having the ability to flex the terms of settlement enables a skilled mediator to be more creative in achieving a resolution.

Costly Litigation

Litigation distracts from the day-to-day running of any business, so many directors and executives, discard it at their financial peril. But, of course, very occasionally a dispute becomes a point of principle and the Court rules then are difficult to disregard.

The Courts, supported by a settlement framework set out in the Civil Procedures Rules, actively encourage both sides in a case to consider routes towards Alternative Dispute Resolution (ADR). There are further measures to ensure the mediation message is understood. If a business refuses to mediate, they not only have to explain their reasoning very carefully, but could also face financial consequences, even if they go on to succeed in their case.

The risk is great as they won’t know the outcome of their decision to refuse to mediate until the end of the case, and after both sides have incurred court fees and disbursements.

Court action

The Courts will take into account:

• the nature of the dispute
• the merits of the case
• what settlement options were available
• the cost of mediation
• any delays
• the prospects of success

The standard is high, and the emphasis is that mediation is not a sign of weakness but one of strength – knowing what outcome you want to achieve and pursuing that objective through a negotiated settlement. While not every dispute can be resolved, a cost-effective solution is rarely found for either party, win or lose, in the courtroom.

Our Commercial Litigation and Dispute Resolution Team can help your businesses steer a course between taking an aggressive and forthright approach to litigation, and employ pragmatism to reach a resolution in the quickest and most cost-effective manner.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

We recently joined forces with Lloyds Bank, chartered accountants MHA MacIntyre Hudson LLP and supplier of automation technology, Festo to bring an inspiring event to manufacturers.

This is the second manufacturing focussed seminar that the organisations have collaborated on and plans are already in place for further events in the coming year.

The event, aptly named ‘Future Manufacturing’ was held in October this year, at Festo’s premises in Brackmills, a suitably dynamic and growing business park in the heart of Northampton.

The day delivered a powerful agenda of presentations from industry experts, each giving their specialist slant on the future of the sector and what measures UK manufacturers can take to ensure they succeed.

I took on the task as host and MC for the day, with Richard Powell of MHA MacIntyre Hudson LLP delivering an overview of the 2016 Manufacturing Report and Keith Willett of Lloyds Bank outlining the various financing options available to manufacturers.

We also had two further speakers highlighting two crucial practical topics facing Manufacturers today:

How the ‘internet of things’ impacts the manufacturing sector

Asif Moghal, manufacturing industry manager at Autodesk, asked the 50 strong audience of manufacturers ‘how ready is your business for the future of making things?’ He then followed this theme through the disruptive trends affecting the industry including cloud, mobile, web and pointing out the huge opportunity businesses have to improve productivity through technology.

Asif provided the attendees with a takeaway to help them benchmark themselves against the competition. You can also do this, by completing a Readiness Assessment on www.futureofbritishmanufacturing.com.

Investing in the right technology is key

Manufacturing Technologies Association CEO, James Selka, took to the floor to focus on the important subject of investing in the right technology. James’ made it clear to the attendees that if they can get the financial side of the equation right, there is a massive opportunity to transform UK manufacturing through technology, and particularly digital innovations which are now becoming more available and affordable.

The seminar was a great success, and from the feedback we have received so far, the manufacturers who attended enjoyed the peer-to-peer discussions and thought provoking topics we covered.

Here is a video produced by a volunteer amateur videographer helping on the Future Manufacturing project. It shows some small snippets and insights from the day:

This certainly won’t be the last the industry will see of this partnership in action as Keith, Richard and I are keen to continue working together to represent and help manufacturers in the county.

If you are a manufacturing business interested in receiving invitations to similar future-focussed events or to discuss other requirements or needs, please do feel free to contact any one of us:  

• Sarah Canning sarah.canning@franklins-sols.co.uk,
• Keith Willett  keith.willett@lloydsbanking.com
• Richard Powell richard.powell@mhllp.co.uk

Consider this scenario: A tenant in liquidation has returned the keys to the landlord and the landlord’s secured the property and marketed it to rent. In these circumstances, you might think the tenant’s guarantor no longer needs to be concerned about the guarantee, as the lease has been surrendered. But you could be wrong! Here’s what you need to know…

Surrendering a commercial lease by operation of law

In a recent case, a landlord was awarded £4 million against the guarantee of a lease, and the guarantor was ordered to take up a new lease following their obligations under the guarantee.

Surrendering a lease may be done one of two ways:

1. Expressly surrendering it by deed
2. Surrendering it by operation of law

What is surrender by operation of law?

This is a method of surrender where the conduct of the landlord and tenant amounts to an acknowledgment by both parties that the tenancy has ended.

Following the case of Padwick Properties Limited V Punj Lloyd Ltd [2016] EWHC 502 (Ch), it’s clear there must be some act that demonstrates the landlord’s intention to regain possession of the property, in addition to simply returning the keys to the premises.

In Padwick Properties Limited v Punj Lloyd Ltd, the Court considered whether it was possible for the surrender of a lease by operation of law to take place, when only one party releases itself of its obligations.

The case facts

Padwick Properties Limited were the landlords of a property, which was subject to an under lease. A subsidiary of Punj Lloyd Ltd acquired the under lease and entered into a Deed of Guarantee with the landlord, guaranteeing payment of all money under the lease. If the lease was later disclaimed, Punj Lloyd Ltd would enter a new lease on the same terms.

In 2011, the subsidiary company went into administration. The administrators wrote to the landlords’ solicitors stating: “The security and safety of the property will revert to your client”. The administrators later returned the keys to the landlord with a covering letter surrendering the lease.

The landlord responded, stating they accepted the keys for maintaining security to the property. Following this, the landlord boarded up the property, changed the locks and marketed it for a short period to-let with vacant possession.

The subsidiary company later went into liquidation and disclaimed the lease. In December 2013, the landlord wrote to Punj Lloyd Ltd requiring them to enter into a new lease pursuant to the deed of guarantee, and demanded payment of the rent due. Punj Lloyd Ltd claimed the lease had been surrendered by operation of law, and as such they were no longer liable under the  guarantee.

Punj Lloyd Ltd argued the landlord had accepted the keys, boarded up the property and marketed it. They stated the landlord, by their conduct, had accepted the surrender.

The Court held that the conduct of both parties is required for a surrender by operation of law to occur, and found in favour of the landlord.

In this case, the High Court gave judgment for £4 million against the guarantor of the lease. He also made an order for specific performance for them to take up a new lease pursuant to their obligations under the guarantee.

Key Points to consider

This case highlights the risks for both parties when faced with a surrender of a lease by operation of law. It’s important that both parties acknowledge the surrender of the lease. In short…

• A tenant can’t terminate a lease by simply walking away from the property and returning the keys
• The facts of each case will be considered. In this case, even the act of boarding up the property and accepting the keys was not deemed to be inconsistent with the continuation of the lease
• Landlords should take care when accepting the return of keys. In this case, the landlords’ agent was careful to expressly state that the return of keys was only accepted to protect the landlord’s interest
• Parties should keep a paper trail of their intentions. The letter from the landlords’ agent was a key factor in deciding the case.

If you’d like further information about surrendering a commercial lease by operation of law or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828 282.

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In some cases, an individual can represent him or herself without legal representation. The Law Society issued guidelines for solicitors who are acting for the other party in a case where such an individual is bringing and defending a claim without legal representation. I share a bit more information below, which The Law Society has provided for such instances.

In doing so, it was acknowledged that the guidelines could make it appear to a client that their solicitor is assisting a Litigant in Person – to their detriment. The following notes are taken directly from The Law Society’s guidance and information for clients, to explain how a solicitor will deal with the other side in a court case if they do not have their own lawyer.

Whoever they are, someone who is not legally represented in a court case is called a ‘litigant in person’ (LiP for short).

The Law Society’s guidance (issued June 2015) reads as follows:

• Your lawyer has duties to you as the client, but all lawyers also have a professional duty to the court and the administration of justice. This means that they must take steps to help the case run fairly and smoothly. This might include doing something that the court asks them to do which you may not want them to do.
• Your lawyer cannot give the LiP legal or tactical advice but the court may ask your lawyer to explain court procedure to the LiP and to explain what they need to do to follow the court’s rules. In some situations, your lawyer’s duty to the court may require them to do this without being asked.
• Your lawyer is expected to behave professionally towards LiPs and is not allowed to take unfair advantage of the fact they do not have their own lawyer by, for example, misleading them or withholding information.
• Court hearings involving LiPs often last longer because the judge may have to give the LiP more time.
• To help the case go smoothly, the judge may ask your lawyer to deal with some practical matters such as preparing the bundles of court papers for the LiP. Your lawyer may also take on some tasks of this sort even without being asked by the court. This can reduce the overall time that the case takes, and the time that you need to spend at court. It can also cut down on the overall cost – for example by cutting down the need for the case to be adjourned (put off to another day).
• As your lawyer may need to spend more time on such tasks as required by the court, and especially if your charges are based on time spent, they may be increased. Your lawyer will be able to explain the impact on the overall costs. Ultimately, the court may require you to meet the cost of a task which it asks your lawyer to carry out.
• When at court, do not be surprised if the judge spends time making sure that the LiP understands what is happening and is dealing with the right points. This may appear to be ‘helping’ but is actually being done only to make sure that the court hearing is fair.
• The judge may put questions to you or your witnesses on behalf of the LiP. This is because it is the judge’s duty to ensure that there is a fair hearing. That includes giving you or your witnesses a proper opportunity to reply to what the LiP has said to the court.

If you have any questions regarding Litigants in person, please do get in contact by email, comment below or call one of our Litigation team on 01604 828 282.

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Copyright claim made against Lana Del Rey

Lana Del Rey has announced that the last song on her latest album, “Lust for Life”, is falling subject to a copyright claim made by Radiohead. Lana has said that her song “Get Free”, has been accused of bearing similarities to Radiohead’s hit “Creep”.

On 7^th January 2018, Lana Del Rey posted the following to her Twitter Page “It’s true about the lawsuit. Although I know my song wasn’t inspired by Creep, Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.”

Whilst it is admitted by representatives that discussions have been held regarding matters between Lana and Radiohead, representatives for Radiohead have refuted claims that they are suing Lana and have insisted that they are not claiming 100% of the royalties.

It is perhaps ironic to note that claims were once brought against Radiohead themselves regarding this very song, “Creep”. The two songwriters for The Hollies’ “The Air that I Breathe” brought a claim which resulted in Radiohead being forced to acknowledge the song writing debt and share the royalties with them.

Copyright is a right to prevent copying and is dealt with under the laws of the United Kingdom under the Copyright, Designs and Patents Act legislation. Copyright arises automatically and protects the authors of original works. It is intended to reward them for their creation of an original piece of work. Both civil remedies and criminal remedies can be sought where copyright infringement can be shown.

Expert advice

It is always worth considering what, if any, implications may arise from any actions you are looking to take. Whether that be looking to develop works without infringing the rights of the original material, or protecting your own original material from infringement.

If you would like further information in relation to copyright matters, whether that be protecting your own interests or ensuring you are not breaching the rights of others, our experienced Intellectual Property team would be delighted to assist.

The much awaited European Union’s 4th Money Laundering Directive has produced a 10 year update to the Money Laundering Regulations 2007.  The Money Laundering Regulations 2017 come into force on the 26 June 2017.

If you have not yet undertaken a review of your money laundering policy in line with the new regulations, set out below is a summary of the key considerations to review further. You should also remove reference to the 2007 legislation as the new 2017 Regulations encompass the regulatory framework that will apply.

Much of the new Regulations is fine tuning but there are key changes and every regulated firm should be reviewing the content, checking its policies and undertaking fresh reviews and training. If you haven’t started, you do not have long to comply and the failures for non-compliance continue to include criminal charges as well as civil and administrative penalties for the organisation and relevant individuals.

1. Risk Assessments

Under the 2007 Regulations, it was necessary to keep policies relating to risk assessment and due diligence.  The 2017 Regulations set out the procedure to be taken by a relevant person when analysing the organisation’s potential exposure to money laundering or terrorist financing.  This will usually mean that the Money Laundering Reporting Officer (MLRO) must produce a written risk report covering its clients, products and services, size and nature of the business, transaction types, and countries of operation and the various modes of delivery.  Having considered those areas, the individual must then put in place policies based upon the findings.  It is the specific process of assessment on a prescriptive basis that is key. It is therefore essential that the MLRO understands how the business works and operates in order to undertake an appropriate risk assessment and then establish the subsequent policies.

If your risk assessment has not been updated in line with the 2017 requirements, now is the time to review it.

2. Risk Mitigation Policies

Taking the 2007 Regulations a step further, risk mitigation policies are to be proportionate to the risks identified and approved by senior management in addition to being in writing.  If you have limited the review work undertaken by your staff or other relevant persons, it is vital that you explain why in your policy and how this is proportionate to the risks you have identified within your business.

The policies must include internal controls over money laundering and terrorist financing risks which includes the screening of agents and staff as well as training.

Screening covers any person whose work is relevant to complying with the AML work within your business. This could range from the person taking the client ID to working in your accounts department. Screening means assessing the skills, knowledge and expertise of such an individual in carrying out their functions effectively and of their conduct and integrity. This is often unlikely to have been previously audited and your policies must be updated.

Taking appropriate measures to ensure relevant employees and agents are made aware of the law relating to money laundering, terrorist financing and data protection, and are regularly given training in how to recognise and deal with transactions and other activities which may be related to money laundering or terrorist financing are also key steps. Training should have been undertaken in any event but additional training should now have been in place to update your staff on the 2017 changes. If those involved with your compliance have not heard of the new Regulations, they will not have been trained. If you received a call from HMRC in advance of an inspection to review your compliance, how would your team respond? If they would be unaware of the Regulations, you may find it difficult to persuade the Regulator that you are compliant.

3. Level of due diligence

There are also changes to Simplified Due Diligence although many organisations have never had the opportunity to utilise this section of the 2007 Regulations.  The 2017 regulations identify high-risk jurisdictions which, if involved in a transaction, will make Enhanced Due Diligence compulsory.

4. Reliance on Third Parties

It is possible under the 2007 Regulations to rely upon the due diligence carried out by a third party providing that party is also regulated.

Under the 2017 regime, the third party must provide the customer due diligence information obtained and enter into a written agreement under which it agrees to provide within 2 working days copies of all customer due diligence documentation in respect of the customer and or is beneficial owner.

5. Politically Exposed Persons (PEP’s)

Historically many organisations did not deal with foreign PEPs.  However, the Politically Expose Persons regime now applies to local PEP’s too.

This means that Enhanced Due Diligence is required for individuals in Trusted prominent public functions not only overseas but also in the UK.  It goes beyond the individual directly to include relatives.

Putting in place a policy that is proportionate, reflects your business and is set out in writing and followed by your staff is vital. Assuming that you will never deal with a PEP will not suffice.

If a client is a PEP, the business must assess the level of risk associated with the particular customer and the extent to which Enhanced Due Diligence should be applied. If your staff are unaware of this requirement, you are not compliant.

6. Documentation

Copies of all relevant documents and supporting evidence in respect of transactions must be kept for 5 years from the date your business knows, or has reasonable cause to believe, that the transaction is complete or that the business relationship has come to an end.

At the end of that period, any personal data must be deleted unless there is a legal requirement to keep it all the date of subject has expressly consented.  Any personal data obtained the purposes of complying with the money laundering regulations 2017 may only be processed for the purposes of preventing money laundering and terrorist financing.

If you have not yet updated your systems, you still have time but must act quickly:-

1. Review your current policy alongside the Money Laundering Regulations 2017 to identify how your systems and procedures should be updated and revised;
2. Ensure appropriate individuals appointed to key risk management and prevention positions are screened and trained on the changes;
3. Ensure your customer due diligence policies are updated and the information retained particularly with regards to PEP’s
4. Ensure all of your systems and procedures are assessed on a risk based process.

This is not an exhaustive list and is provided for guidance purposes only.

Should you require assistance in complying with the Money Laundering Regulations 2017 that will apply to your business from the 26th June 2017, please contact Sarah Canning at sarah.canning@franklins-sols.co.uk.

Recently I co-presented a workshop with Colin Howe of Hillier Hopkins.

I handled the legal part of the workshop where we spoke to a number of business owners – keen to understand how to value their businesses and know what is involved in selling a business.

For my part, I explained what happens from a legal perspective once a seller has decided to sell; has obtained a valuation along the lines discussed by Colin and has found a buyer willing to pay the asking price. (Colin has written a guest post for us based on the insights he shared in that session – read more here.) In this post I share what I shared with the attendees on the day…

What is the Due Diligence that is carried out in a sale of a business?

“Due Diligence”, from a legal perspective, is the process by which a buyer investigates what they are buying by making a series of enquiries of the seller in order to support the value they have been asked to pay and to find out if there are any matters which should be used as a platform to negotiate the price.

Due diligence can be seen by knowledgeable buyers as a key part of any transaction.  However, there is a certain amount of value in business owners considering the aspects that are usually covered – because this helps them protect and build value in both the short and long term.

How important is planning?

My view, based on my experiences as a commercial legal advisor, is that planning can serve to make the sale process run smoothly and avoid price negotiations; thereby achieving a maximum return on the seller’s time and investment.  In some instances, planning can also provide interim benefits leading up to an exit.

What are the elements I would suggest a seller focuses on in planning his/her sale?

The following aspects are what I would suggest to a seller in helping him/her to prepare for the sale process:

1.  Contracts

In the first instance, my advice would be to put contracts in place. This way you are turning any informal deals into formal written contracts, on reasonable terms.

Interim benefits:

(a)   By putting (for example) terms for clients or suppliers in place this can assist internal processes such as credit control since having terms in place affords an opportunity to be more robust in recovering monies from bad payers.

(b)   For longer term supply or purchasing projects, attempt to negotiate suitable terms with legal advice and avoid agreeing onerous terms.  This is because buyers will be wary of such terms because they are likely to inherit these and the target’s position under them.

(c)   With standard terms of supply or purchase – put them in place and train sales and purchasing staff on incorporation to win what us lawyers call the “battle of the forms”. (I say this because you can have well drafted terms but they will mean little if they are not properly incorporated into a contractual relationship.)

2.   Appointment of agents and distributors

An agent is a person who negotiates or concludes a contract between a business and a customer in return for commission and, whilst there can by many advantages to engaging them (including using their local knowledge), a buyer will be wary of inheriting exposure to claims in respect of agents.

In respect of claims a buyer might inherit, the Commercial Agents (Council Directive) Regulations give agents the right to compensation when their appointment is terminated or when they reach a suitable retirement age (which is 65).  Whilst it is not legally permissible to exclude this right, with legal advice exposure to such claims can be mitigated.

A distributor is a person who buys goods on their own account from a supplier for resale to customers.  In this scenario, there is no contract between the supplier and a customer as the involvement of the distributor means there are different levels in the supply chain.  This means that United Kingdom and European competition law can be relevant.

Competition law impacts upon what terms in a distribution agreement are enforceable and the inclusion of certain blacklisted terms (which can include certain pricing provisions) can potentially render an entire agreement void and unenforceable.

A buyer will be wary of inheriting breaches of legal requirements such as these which make the terms of the agreements it will inherit unenforceable; so it can be important to get things right.

3.   Litigation

In respect of litigation, the uncertainties involved and the prospect of inheriting liabilities is likely to affect the view of any buyer.  The approach should therefore be to mitigate rather than litigate.

Putting in place contractual protection as discussed previously will reduce exposure and will please any buyer.  Litigation can be a disruption and many litigants quickly become frustrated with the process, so there is also an interim benefit of avoiding business disruption and lost management time to be had.

In busy and challenging times, standard terms are often given a low priority by businesses and may only be given detailed consideration when a dispute arises, by which time it may be too late; so businesses should try to avoid making the common mistake.

4.     Intellectual Property

Firstly, business owners should consider what intellectual property they have and which is integral to their business.

Secondly, they should then consider what steps to take to best protect it and take those steps; most businesses have branding which they invest in for example, and this can be easily protected by way of a registered trade mark to stop others using it.

This is important because any buyer wants to know that what they are buying is properly protected.  Any buyer also wants to know that the seller owns what they are selling so they take good title; so businesses should make sure they own what they pay for.

A recent survey found that 74% of businesses could not correctly identify the owner of copyright when using a consultant.  When engaging outside parties in areas such as brand creation, website design, software development, etc., the work they produce will be protected by copyright and, notwithstanding the fact they are paid for their services, ownership lies with the consultant rather than the commissioner.

This legal position can, however, be easily reversed by way of a written assignment; so businesses should deal with the issue upfront as it can be costly to argue over the issue afterwards.

I hope that was a helpful guide for you on the legal aspects to the business sale process.

Would you like an informal discussion as a buyer or seller?

If you didn’t manage to come to the presentation we delivered on this subject and would like to talk about your thoughts on your own businesses value for sale, or if you are looking to buy a business – please feel free to contact me. You can ask a question below in the comments section; email me; call me on 01908 660 966 or tweet me.

We offer a free legal healthcheck service to identify anything which might be a legal issue in a business, so if you like would like to informally discuss whether any of these areas may be relevant to you then please feel free to get in touch.

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With the end of the year approaching, all Money Laundering Reporting Officer’s (MLRO’s) should be well under way in their review of their organisations anti-money laundering procedures in readiness for presenting their annual report.

The annual report must be presented to senior management and does not take a specific form. The level of detail required to comply with the statutory legislation will depend upon the size and type of work undertaken and this degree of flexibility for the MLRO can lead some to believe that a small organisation need not comply at all.

This is an incorrect assumption and would leave the MLRO exposed to personal liability should an anti-money laundering (AML) problem arise.

Undertaking this important annual review and completing the report ensures that the MLRO can evidence that his/her duties have been fulfilled. It is a good opportunity to review the current work practices and plan for the future, particularity if there are changes in legislation or training requirements needed. It is also the time to check that all staff have been appropriately inducted, to consider the audit of work that has taken place over the course of the year and whether any specific additional support is required.

The final report should comment on the effectiveness of the organisation’s AML systems and controls as well as making any recommendations for improvement. It is likely that in order to achieve this there would need to be a review of the risks facing the business and its priorities, as well as highlighting the resources available to address those issues. A review should therefore go beyond considering everyday work practice. It is a business review that also analyses the trends arising from enquiries and audits throughout the year.

Whilst there is no specific form, a report should include the following in order to show the MLRO’s understanding of their statutory role:-

• The AML governance structure and functions
• A report on the operation of systems and controls – to include training and monitoring
• A summary of business issues – to include record keeping, risks and Client Due Diligence processes
• Conclusions and recommendations

Be ahead of an audit and complete your annual report. Failing to do so exposes your organisation to a fine and risks a potential personal liability for the MLRO if procedures are not in place to protect an organisation.

If you are an MLRO and need guidance on AML governance structure and reporting responsibilities – then please feel free to get in contact with me, either by commenting below or email me. I’d be pleased to help

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Regulations in relation to ending an Assured Shorthold Tenancy have come into force for any new tenancy starting on or after 1 October 2015.

The new regulations will affect landlords wanting to serve Section 21 notices on their tenants as follows:

• A landlord will no longer be able to serve a Section 21 notice at the start of an assured short hold tenancy. This is to ensure that the tenants are actually given 2 months’ notice prior to the tenancy coming to an end;

• Landlords will be restricted from taking retaliatory action against their tenants where a tenant has made a written complaint to their landlord regarding the condition of the premises or common parts, and the landlord has not responded or has provided an inadequate response to the complaint but instead served a Section 21 notice;

• The landlord cannot serve a Section 21 notice where they have failed to provide the tenant with an Energy Performance Certificate (free of charge) and provided the tenant with a Gas Safety Certificate;

• The landlord is also unable to serve a Section 21 notice if they had failed to protect the tenant’s deposit under a Tenancy Deposit Scheme and provided the appropriate prescribed information in relation to the Scheme.

• The regulations introduce an obligation on the landlord is to provide information about the respective rights and responsibilities of both the landlord and the tenant under the Assured Shorthold Tenancy. The landlord will not be able to serve a Section 21 notice if it has been in breach of this obligation.

The landlord must therefore supply the tenant with a copy of DCLG: how to rent: the checklist for renting in England .

The landlord can provide this information by email or hard copy and is not obliged to provide the tenant with an updated copy throughout the tenancy.

It is not, however, all bad news for landlords..

The new regulations will also provide a prescribed form for the Section 21 notice which removes the need for the landlord to specify the last date of a period of the tenancy and as such only 2 months’ notice is sufficient. This will make it easier for landlords who have complied with their legal obligations throughout the tenancy to serve a valid section 21 notice, as the dates for ending a tenancy has historically been the most common reason for notices to be invalid.

Overall, the new regulations will have a minimal effect on those landlords who are meeting their obligations to their tenants. For those landlords who have failed to meet their obligations however, they will need to rely on the discretionary grounds within Section 8 of the Housing Act 1988 should they need to serve notice on their tenants and as such the Accelerated Procedure for Possession will not be available for them.

What impact are these changes meant impose?

The changes seek to emphasise that if you are a landlord it is important to:

• Protect the tenants deposit in a recognised Tenancy Deposit Scheme within 30 days of receiving the deposit;
• Provide the tenant with the relevant prescribed information in relation to the Tenancy Deposit Scheme;
• Provide the Tenant with a copy of DCLG: how to rent: the checklist for renting in England at the start of the tenancy;
• Provide the tenant with a copy of the Energy Performance Certificate, free of charge;
• Provide the tenant with the appropriate Gas Safety Certificates; and
• Where appropriate, check the immigration status of your tenant.

If you are a landlord or a tenant and are unsure as to what these changes mean for you – please feel free to comment below, tweet me or contact me by email.

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