Tenant Fees Act (2019): What Landlords & Tenants Need to Know


The Tenant Fees Act came into force on 1st June 2019 for new tenancies and was then extended to cover all tenancies on 1st June 2020.  At the centre of the new rules is a ban on tenant fees, including admin and agency fees.

All tenant payments are now prohibited by default, Only payments specifically permitted by the Act can be charged. The permitted list does not include fees such as referencing and inventories. 

Here’s everything a landlord needs to know about the Tenant Fees Act (2019).

Summary of Tenant Fee Ban

  • Limit tenancy deposits to five weeks’ rent
  • Limit holding deposits to one week’s rent
  • Ban any other payments (except contractual default penalties)
  • Fines of £5,000 for first offence (civil)
  • Fines of £30,000 for second offence (criminal)

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What’s in the Act?

Here are the key new rules contained in the Act.

1. All Payments Prohibited Except Rent, Deposits and Three Exceptions

Landlords or their agents are no longer allowed to charge tenants for anything except: the rent, the tenancy deposit and a holding deposit (more on these below).

This means you are no longer allowed to ask tenants to cover the cost of their own referencing. You also can’t charge mandatory check-in, inventory, cleaning or admin fees.

2. Three Fees Are Exempt

The only three exceptions are for contract amendments and two kinds of ‘default’ fees. These are fees you can charge when the tenant breaks the tenancy agreement. You will have to write these clauses into your contract to be able to charge tenants these fees while the tenancy is in progress.

(a) Late Rent Fees

You can charge fees for rent payments that are over two weeks late. The fees can be up to 3% plus the Bank of England base interest rate. Because this is an annual interest rate, you will have to calculate the amount of pro rata interest accrued on the outstanding rent.

Here’s an example:

The tenant is 60 days late for one £1,500 rent payment.

Assume the base rate of interest is 0.75%, so you can chase the tenant for the outstanding rent plus a fee of 3.75% of outstanding rent, pro rata for the 60 days.

3.75% of £1,500 is £56.25.

60 days is 60/365 of the yearly rate. Therefore, to get the pro rata amount, we multiply £56.25 by 60/365, which is £9.25.

Many of you will be thinking that £9.25 is not a big fine for being two months late with the rent. This is quite a small fee. You will also not be able to charge for chasing the rent, i.e. for sending letters.

It’s debatable, however, whether late fees have ever been effective at making tenants pay on time, and if the threat of eviction is a much better deterrent. Landlord will of course still be able to serve Section 8 notices for late payment of rent.

(b) Lost Keys

You can also still charge tenants for losing their keys (or other security device if your property is high-tech). But you will only be able to charge a reasonable amount for which you can provide evidence of the cost to you.

For example, you could charge £5 to replace a lost key if you can produce a receipt for £5 for getting a new key cut.

Remember, both default fees need to be included in the tenancy agreement for you to be able to charge them, and previous rules about fair clauses will still apply.

(c) Changes to Tenancy

Landlords can charge up to £50 for making changes to the terms of the tenancy. For example, adding a new tenant to the tenancy or allowing a pet.

Landlord can charge more than £50 if they are able to demonstrate their costs exceeded £50, but it is expected that this will not happen often.

Crucially, this exception does not apply to renewals or changes to the length of the tenancy.

3. Cap on Tenancy Deposits

Tenancy deposits, also called security deposits, are limited to five weeks’ rent for annuals rents under £50,000.

Landlords will note that this is hardly more than a month’s rent, meaning tenants could in theory not pay the last month’s rent, allowing the landlord to deduct it from their deposit. At that point there would only be a small amount of the deposit left to cover any damage to the property.

For properties whose annual rent is £50,000 or more, tenancy deposits will be capped at six weeks’ rent. 

Not sure what your maximum deposit is? You can check your maximum tenancy deposit using our new deposit calculator

In practice, deposits have never been uncapped. They have always been kept below two months’ rent due to the fear of the tenancy becoming a premium tenancy.

4. Cap on Holding Deposits

Likewise, holding deposits are limited to one week’s rent.

This is a big change, since most holding deposits are currently much more than a week’s rent. An OpenRent poll recently found that 47% of tenants have paid a holding deposit of over £750 — much more than the average weekly rent for a UK property.

5. New Rules on Holding Deposits

The Act includes new rules about how holding deposits must be treated.

The holding deposit must be returned to the tenant: either in payment back to the tenant, or being put towards the first rental payment, or the security deposit.

There are some exceptions. In these cases the landlord can keep the holding deposits:

  • The tenant withdraws
  • The tenant doesn’t take all reasonable steps to enter the tenancy
  • The tenant fails a right to rent check
  • The tenant provides misleading information which materially affects their suitability to rent the property

If that last one sounds a little vague to you, then you’re not alone. You can read the exact wording here in paragraph 9 of the Tenant Fees Act.

6. Repayment of Holding Deposits

Landlords are only able to hold the holding deposit for 15 days unless another ‘deadline’ date is agreed in writing.

After the deadline, the holding deposit must be repaid within 7 days according to the above rules (see 5).

The holding deposit can be repaid to the tenant, or it can be put towards the rent or tenancy deposit.

What Are the Penalties to Landlords Who Charge Tenant Fees?

Landlords (or agents) who charge illegal fees will face paying huge fines.

The first offence would be a civil offence, with a fine of £5,000.

If the offence is repeated within five years, there would be either a criminal offence or a fine of £30,000.

There are also plans to help tenants recoup any illegal fees they paid from the landlord (or agent).

Local Trading Standards organisations will enforce the ban.

Do You Support the Ban? Join the Debate here!

My Tenancy Began Before 1st June 2019 and the Deposit is More than Five Weeks’ Rent: Do I Need to Return the Excess Amount?

No, not unless you renew the tenancy. If the tenancy lapses into a periodic tenancy, then this is not a ‘new tenancy’ as defined in the Act.

If you renew the tenancy, however, then yes; you will need to make sure any tenancy deposit does not exceed the maximum amount of five weeks’ rent. 

You can do this by returning the excess to the tenant. Here is how to return excess deposit amounts to a tenant.

Can I Still Charge Bills as Part of the Rent?

Yes. You can still include bills in the rent for the following utilities and services:

  • Council tax
  • Utilities, e.g. gas, water, electricity
  • Television license
  • Communication services (e.g. broadband)

Just want peace of mind as a landlord? We’ll perform all your legal duties for you, so you can be sure.

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Notable Replies

  1. Hi Sam,

    I am hoping to start a new tenancy agreement for a flat. The current tenancy is coming to an end. However, one tenant is planning to stay and I will start a new tenancy with them. As a result, the agency is charging a £50 admin fee for change in sharer. I assume this is illegal as we are a starting a new tenancy agreement.

    Thank you
    Safa

  2. Antje says:

    Hi Sam,
    I have read the following on an advertisement:
    ‘NO DEPOSIT PAYABLE OR APPLICATION FEES* All you pay to move in is a Holding fee equivalent to 1 weeks rent to reserve the house , this is then credited towards your first month’s rent. You must then pay 1x month’s rent on the day you move in + a service fee equivalent to one weeks rent (7 days) plus VAT to Let alliance Nil Deposit Scheme.’

    Is the ‘Service Fee’ allowable???
    Thanks and regards, A.

  3. Hi Antje,

    Lucky Sam is on holiday and has taken all his specialist knowledge with him - so I don’t have all the answers for you. What I do know is that deposit replacement schemes are allowed and they can charge these costs - but they could have worded it in a much better way that wouldn’t raise questions over whether or not they were in breach of the TFA.

    Gillian

  4. That’s an interesting question. I’ve just consulted MyDeposits and their advice is that you don’t need to agree. You must be given the choice between the replacement scheme and a refundable deposit. To quote them…‘Landlords and agents cannot make it a requirement for tenants to use a deposit replacement product, as the upfront charge will be seen as a prohibited payment.’

  5. Antje says:

    Many thanks again Gillian!
    Have a nice weekend! Antje.

Continue the discussion at community.openrent.co.uk

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