Legal responsibilities during the Coronavirus

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Nothing in the Government’s emergency measures for dealing with the Coronavirus excuses landlords from their legal responsibilities. They are still required to provide and maintain safe and decent accommodation, to provide those certificates demanded by law, to abide by their side of the tenancy agreement, including allowing their tenants ‘quiet enjoyment’ of their accommodation. They must also fulfil their ‘right to rent’ obligations.

Against this the Government is encouraging local authorities to take a ‘common-sense, pragmatic approach’ to enforcement of regulations during the crisis. And it has asked local authorities to suspend any thoughts they might have of introducing non-mandatory licensing schemes ‘where this will allow limited resources to be focused where they are most needed’.

Under current circumstances keeping on time of repairs, maintenance and regulatory requirements requiring access to rental properties will present greater challenges than normal. First, it may be difficult to find suitable tradespeople to undertake maintenance and repair work. Secondly, tenants may not wish to give access to their homes for inspections or for work to be undertaken for fear of being infected.

Landlords could use their communications with tenants that in current circumstances they are relying on them to monitor the property for signs of disrepair.

 ‘We recommend that access to a property is only proposed for serious and urgent issues’, says the Government.

It suggests such issues include those which will affect tenants’ ability to live safely and maintain their mental and physical health in the property. This could include leaking roofs, broken boilers, serious plumbing issues or security problems, such as broken windows or external doors.

‘Where reasonable and safe for you, and in line with other Government guidance, you should make every effort to review and address issues brought to your attention by your tenants, and keep records of your efforts’, the Government advises. However: ‘We encourage tenants and landlords to take a pragmatic, common-sense approach to non-urgent issues which are affected by COVID-19 related restrictions’.

Regardless of current restrictions, landlords are still obliged to provide tenants with all necessary gas and electrical safety and any other relevant certifications required at the beginning and during tenancies. However, there is a little leeway.

‘Landlords should make every effort to abide by existing gas safety regulations and electrical safety regulations which come into force on 1 July. There are provisions in both regulations to account for situations in which a landlord cannot do this and they must demonstrate they have taken all reasonable steps to comply with the law’, says the Government.

If landlords are not able to gain access to the property due to current restrictions, or are not able to engage a contractor to carry out the necessary work, they should keep a record of their attempts to have the certification undertaken and also of all correspondence about the matter with tenants.

The NLA suggests a least five or six attempts should be made to find suitably qualified tradespeople when needed and that records should be kept detailing each attempt.

Landlords and tenants should ‘engage constructively’ about access to a property, and that this should only be allowed for serious and urgent issues, says the Government. If urgent work can be arranged, all direct contact between and those conducting the work should be avoided wherever possible.

New this year, the Electrical Safety Standards in the Private Rented Sector Regulations 2020, apply to all new tenancies on 1 July 2020 and for existing tenancies on 1 April 2021.

The regulations require landlords to have electrical installations in their properties inspected and tested by a person who is qualified and competent, at least every five years; to provide a copy of the report (known as the Electrical Safety Condition Report or EICR) to their tenants, and to the local authority if requested. If the report indicates that investigative or remedial works are necessary, landlords are required to have this work  carried out.

The Gas Safety (Installation and Use) Regulations 1998 require landlords to have an annual gas safety check on each appliance and flu carried out by an engineer registered with the Gas Safe Register and to keep a record of each safety check.

Landlords will not be in breach of these regulations provided they can show they have taken all reasonable steps to comply. To do this, landlords must be able to show they have taken reasonable steps to comply by providing copies of all communications they have had with their tenants and with engineers in their attempts to arrange for the necessary work.

Landlords may also wish to provide other evidence they have that the installation, appliance or flue that requires certification is in a good condition at the time they have attempted to arrange works.

There are particular problems for landlords when tenants are vulnerable, are self-isolating, or are living in HMO properties.

In the case of HMO properties, landlords are not obliged to provide alternative accommodation if one or more of a number of tenants develops Coronavirus symptoms or contracts the disease. Neither can anybody be removed from their home because of the virus

Tenants living in shared accommodation should follow current Public Health England guidance, says the Government. It points to guidance on home cleaning to minimise the risk of infection and on what to do when sharing a home with someone who may have the virus.

The NLA says that in any case, tenants living in HMOs should be advised to remain in their rooms as much as possible, to avoid communal areas, use separate cutlery and crockery, clean their own dishes using a separate tea towel, schedule routines so that any person who is self-isolating uses the bathroom last, use separate towels and cloths, and clean surfaces thoroughly. It advises landlords to display notices advising tenants on infection prevention techniques. These can be downloaded from the World Health Organisation and NHS websites.

Government guidance on what to do if someone in a household contracts the Coronavirus includes self-isolation of the whole household for 14 days.

Needless to say, re-letting or selling properties will be extremely difficult during the Coronavirus crisis.

When the Government says ‘stay at home’, it means just that – do not go out except when necessary, and do not move house. It advises that wherever possible home-buyers and renters should delay moving to a new house while crisis measures are in place to fight coronavirus. If moving is unavoidable for contractual reasons and the parties are unable to reach an agreement to delay, people must follow advice on staying away from others so as to minimise the spread of the virus.

‘In line with Government’s advice, anyone with symptoms, self-isolating or shielding from the virus, should follow medical advice which will mean not moving house for the time being, if at all possible. All parties should prioritise agreeing amicable arrangements to change move dates for individuals in this group, or where someone in a chain is in this group’.

Even finding new tenants who might be looking to move in once the crisis is over is fraught with difficulty. Viewings will be difficult except via video link.

‘We recommend that landlords and tenants engage constructively about access to a property, and that it is only proposed for serious and urgent issues’, says the Government. This means that no one should visit the property to conduct viewings, or anything else which is not urgent and health and safety-related.

The NLA suggests that landlords in urgent need of new tenants could contact local authorities who might well be willing to take on properties for their own rental purposes’

In the rare occasions where new tenants are taken on, landlords will still be expected to fulfill their ‘right to rent obligations’, although face to face meetings may be avoided.

Checks may, from 30 March, be conducted by video link with documents provided by electronic means having either been scanned or photographed. The proposed tenants should be asked to hold up their original documents to the camera so that they can be checked against the digital copies that have been submitted. Where proof of right to rent cannot be provided, landlords should use the Landlord’s Checking Service.

‘It remains an offence to knowingly lease premises to a person who is not lawfully in the UK’, the Government warns.

However, because of the current crisis ‘some individuals will be unable to evidence their right to rent. During this period, you must take extra care to ensure that no-one is discriminated against because they are struggling to evidence their right to rent.

To avoid this, landlords should follow the Government’s code of practice on the subject.

Landlords will be required to undertake retrospective face-to-face checks, within eight weeks of the Coronavirus crisis having been declared over.

Finally, landlords who use letting agents should be mindful that in law they bear ultimate responsibility for the actions of their agents. Careful landlords will therefore ask agents to tell them the steps they are taking to follow Government recommendations on dealing with the crisis.

 

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