It seems that landlords no sooner learn the regulations than a new set are introduced, making previous knowledge irrelevant, in some cases. Since the last summary of regulations was issued in 2005, there have been significant changes with a raft of legislation set to be introduced from October 2015.
Gas Safety Regulations
The Gas Safety (Installation & Use) Regulations 1998 place a statutory duty on all landlords of residential property to ensure that all gas appliances, pipework and flues are maintained in a safe condition. Gas engineers had to be Corgi registered to issue safety certificates, but this changed from 1st April 2009 when the Gas Safe Register replaced Corgi. Each gas safe engineer carries an ID card, which shows his license no. on the front (his no. can be verified on 0800 408 5500 or on the Gas Safe Register website, if in doubt), with start and expiry dates and a security hologram. The reverse lists the work that the engineer is registered to do.
The hazard of carbon monoxide poisoning is a particular risk being odourless and deadly so
- All let properties must have a valid Gas Safe record
- The Gas Safe engineer will provide the landlord with a copy of the Gas Safe certificate; the landlord must provide the tenant with a copy of the Gas Safe record within 28 days.
- A gas safety check must be carried out annually and the tenant provided with a copy of the Gas Safe record.
- The landlord must keep a copy of each Gas Safe record for a minimum of 2 years.
- If the tenant changes within 1 year, there is no need to have a new Gas Safe record done until the current Gas Safe record expires after 1 year (though it may be good practice to do so if children may have inserted objects into fires etc.)
Smoke Alarms and Carbon Monoxide Alarm (England) Regulations 2015
Houses in Multiple Occupation will have stipulations made by the Local Authority Enforcement Officers about what fire safety precautions they are required to provide. Every room should have a smoke and fire alarm wired into the electrical system. There have, up to now, been no specific legislative requirements for the standard domestic house or flat, though it is good practice to provide alarms.
From 1st October 2015:
- Every private rented dwelling should have a fire and smoke alarm placed on every floor/storey of a building which has a room used wholly or partly as living accommodation;
- A carbon monoxide alarm should be provided in any room of a dwelling which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance (open fire, AGA).
- Bathrooms and lavatories are treated as a room used as living accommodation; therefore, if one storey of a property only has bathroom or toilet on it (which may apply for example in a flat over a shop where bathroom is located behind the shop) then a smoke and fire alarm must be fitted on that floor.
NB: Although this is being publicised as legislation and that landlords must comply, it is not having its’ second reading until October 2015. An amendment has been added to include properties with gas boilers, gas cookers and gas fires, but the reading must go ahead to have these included in the legislation.
NNB: W/C 07-09-15 the new legislation was blocked by the House of Lords due to the fact that the proposed introduction was less than three weeks away, and the government failed to sufficiently to warn landlords of the changes in legislation, which was also said to be poorly worded. The legislation is still likely to be passed in some form, but it is yet to be confirmed if the original schedule will still go ahead.
Concerns have been raised about the possibility of Legionella infection occurring in properties which have been left void for a considerable period. The risk is slight, but landlords need to be aware of how to avoid it.
A professional service can provide a certificate, but this is not necessary, landlords can self-certify as competent persons, but this should be a formal process. Many agents are cautious about self-certification and will insist that a professional service be used but this is not a legal requirement.
Landlords should identify and assess sources of risk and whether there is a risk of exposure to legionella.
- Is the water temperature in all or some parts of the system between 20-45 degrees Centigrade?
- Is water stored or re-circulated as part of the system?
- Are there sources of nutrients such as rust, sludge, scale, organic matter or biofilms?
- Are the conditions likely to encourage bacteria to multiply?
If the landlord’s assessment is that the risk is very low or negligible, then nothing further is needed other than that he devises his own certificate, which includes:
- By whom the inspection was undertaken,
- Any findings, details of any steps taken,
- Written control scheme and details of its’ implementation,
- Details of the state of the operation of the system (i.e. in use, not in use),
- Results of any monitoring inspection and the date.
It should be retained for at least two years though if anything is found in the monitoring inspection; it should be kept for a minimum of 5 years.
To ensure there is no risk, shower systems should be run at 60% (this increases to 65% in a hospital environment). Where a property is left void for a significant period, cleaning of the shower-head and tube with bleach and then running with hot water should ensure that there is no risk.
Energy Performance Certificates
Energy Performance Certificates were introduced from 1st August 2007 as part of the Home Information Packs required when selling a property. They can last 10 years, though re-assessment should be done if any energy saving measures are introduced (i.e. double-glazing replacing single glazing, cavity wall insulation, new boilers). Although the Home Information Pack has died the death, EPC’s remain and must be obtained before a property is marketed either to let or to buy.
From April 2016, tenants can ask that the landlord take any reasonable steps to increase the energy efficiency of the property and face penalties if they do not do so. Landlords are expected to take appropriate action if it attracts a rating of F or G. From April 2018, landlords will be unable to rent a property with an F or G rating.
From 1st October 2014, DCLG made an amendment in the Enterprise and Regulatory Reform Act. Three Letting Agent redress schemes were announced, which are intended to protect tenants by providing a simple and effective route to obtain compensation if they receive poor service from an agent. This applies to all agents, that is, people who manage a property on behalf of someone else, whether it is one property or many, and they must be registered with a scheme. Agents have to pay a fee to join one of the 3 schemes, which are The Property Ombudsman, Ombudsman Services Property, or The Property Redress Scheme.
Penalties for failure to join a Property Redress Scheme are high. Local authorities can impose fines of up to £5,000 and Trading Standards can order that the agent cease trading.
Mandatory licensing was introduced by the Housing Act 2004 and came into force on 6th April 2006, to improve standards in Houses in Multiple Occupation (HMO’s); it is mandatory in HMO’s where there are 3 or more storeys and is occupied by 5 or more tenants forming two or more households.
Selective licensing (referred to as additional licensing in the 2005 summary)
Selective licensing is for areas decided by the local authority and is used to tackle anti-social behaviour and low demand for properties in specific areas. This is not popular, with landlords arguing that the good are hit with the same penalties as the bad in that all must pay a hefty licensing fee. When originally introduced, a selective licensing area had to be approved by the Secretary of State and a good case made for it. In 2010 this was changed and local authorities could designate a licensing area anywhere they chose. This led to Borough-wide licensing schemes in several areas. Another change was put in place from 1st April 2015 and local authorities must now make an application to the Secretary of State for any selective licensing schemes which exceed either 20% of an authority’s geographic area or 20% of the private sector in that area.
In both Mandatory and Selective licensing schemes, failure to obtain a license for a property that should be licensed, without a reasonable excuse for doing so, is a criminal offence; it attracts very heavy penalties and the landlord would not be allowed to use an s.21 to end the tenancy.
These are voluntary schemes run by local authorities for reputable landlords; there is not usually a cost, though some works may be requested to bring properties up to the standard they have set. This could mean a professional electrical safety certificate (which is not yet a legislative requirement) and sight of the safety certificates which are a mandatory requirement. These schemes can offer good support to landlords, help with referencing and tenancy documents. These schemes are favoured by the Government as they seem to establish better relationships than had previously existed between local authorities and private landlords.
Houses in Multiple Occupations
Houses in Multiple Occupation are subject to licensing if they are 3 stories or more and are let to 5 or more people who make up 2 or more households. Local authorities can decide to extend licensing to other HMO’s that would not otherwise meet the criteria, if they feel this is necessary. All landlords should be in contact with the local authority to ensure their properties meet the standards required of them.
Whilst self-contained properties will always attract their own council tax bill, where there are shared facilities, the landlord would expect to pay the Council Tax on the whole building. Some local authorities are now seeking to rate even a bed-sit as an individual unit. Since April 2014, local authorities have been required to devise local council tax schemes; there is no uniform manner in which authorities have decided what discounts (if any) they will apply for void/refurbishment periods. Check with the local authority what has to be paid and when.
From 1st October 2015, any room heated via an open fire or stove must have a carbon monoxide detector in it.
Electrical Equipment (Safety) Regulations 1994
There is no mandatory requirement for safety testing of any of the electrical system but there is a duty of care on all landlords to ensure that the system/equipment is safe.
Landlords should do a careful inspection as:
- Live parts should not be accessible;
- Leads should not be worn or frayed;
- Correct plugs should be fitted and correctly fused (electrical appliances now will have fitted plugs);
- Avoid trailing leads and multiple plug adaptors as they are a safety hazard;
- Plug sockets should be firmly fixed to the wall or skirting;
- Moving parts should be serviced;
- Washing machines and cookers should be serviced and in good working order;
- Microwaves and cookers should be clean and free from corrosion;
Any major electrical work should be notified to the local authority. Work must be done by a member of one of the certified bodies, for example NICEIC, who must comply with BS7671.
Few landlords now provide other than basic furnishings, but if any portable electrical appliances are included in the tenancy, then Portable Appliance Testing is necessary.
6th April 2007 saw the introduction of Tenancy Deposit Protection following a major campaign from Shelter and CAB, who believed that 50% of tenants did not have their deposits returned to them. There are three Tenancy Deposit Protection schemes: The Deposit Protection Service, which is free to use but requires that deposits are lodged with them, My Deposits and Tenancy Deposit Scheme, both of which allow the landlord to retain the deposit but require that an insurance premium is paid.
Failure to protect the deposit could result in a Court ordering the landlord to re-pay the deposit plus a sum equal to 3 times the deposit and also prohibit the landlord from using a s.21 notice to end the tenancy.
There was some confusion in the first years of Tenancy Deposit Protection, with various rulings causing confusion. It was believed that if a deposit was taken pre April 2007, then the deposit did not need protecting. Then, following the Superstrike vs. Rodrigues ruling in 2013, it was decided that conversion to a statutory periodic tenancy after 6th April 2007 created a new tenancy and the deposit should therefore be protected. In 2015, landlords were given until 23rd June 2015 to protect all deposits taken after 6th April 2007 or which converted to Statutory Periodic Tenancy after that date.
The only exemption from protecting a deposit is where a tenancy commenced before April 2007 and a new tenancy has not been issued. The landlord will not face fines, but will be unable to use a s.21 to evict. A deposit held so long indicates a good tenant and it may be worth returning a deposit taken so long ago.
Section 8 notices are used to end a tenancy where one or more grounds exist. The notice was amended in April 2015 following the De-Regulation Act 2015 and section 97 of the Anti-Social Behaviour, Crime and Policing Act 2014. This added 2 new grounds to the existing 17.
7A, which is a mandatory ground relating to conviction for serious offences, breaching an anti-social behaviour injunction and statutory nuisance.
14ZA, a discretionary ground where the tenant or adult living in the property has been convicted of an arrestable offence committed during and at the scene of a riot in England.
A section 21 has been the favoured method of ending an Assured Shorthold tenancy since it was devised under the 1988 Housing Act. Changes that came into force in the 1996 Housing Act made it easier for a landlord to avoid issuing an assured tenancy, rather than the lesser security assured shorthold tenancy. A landlord could write his own s.21 notice, provided he included the proscribed wording, though there were two formal notices, one to be issued during fixed term, one for when the tenancy converted to a Statutory Periodic tenancy.
From 1st October 2015, there will only be one formal notice and the landlord will not have the option of writing his own. There will be limits on when it can be issued – at the earliest, it can only be issued when the tenancy has run 4 months. After issuance, a Court order must be sought within 6 months or the process of notice will need to start again.
Landlord regulations are constantly changing and any landlord unsure of their duties should take advice from an appropriate source.
For advice on buy to let issues – Ask Sharon