Foundations of Landlord & Tenant Law part 14
In addition to all the legislation discussed in the previous parts of this series, there are a lot of regulations which landlords (and tenants, but mostly landlords) need to comply with.
These include regulations governed both by the criminal and the civil law. However the best known are within the criminal jurisdiction, and deal with health and safety issues.
Regulations governed by the criminal law
The Gas Safety Regulations
These are perhaps the best known of the regulations. Gas and improperly maintained gas appliances can be very dangerous, and therefore to protect tenants the Gas Safety (Installation and Use) Regulations 1998 were passed.
These provide for landlords to get all gas appliances checked annually with a gas installer registered with the Gas Safe Register and provide a certificate to this effect to tenants when they first go in and then every year after that.
The regulations are enforced by local Heath and Safety Executives. This is the organisation tenants should contact when their landlords fail to obtain and provide them with a gas safety certificate. However the HSE has been criticised for failing to prosecute diligently, and there are relatively few reported cases.
The Furniture and other product safety regulations
The furniture regulations are also reasonably well known. These require landlords to provide only furniture and furnishings which comply with fire safety standards and to ensure that all items contain the proper labels.
These regulations are enforced by local authority Trading Standards Offices, along with other product safety regulations relating to electrical and other appliances in the home. Landlords wanting to know more about their obligations here should contact their local Trading Standards Office as they generally have useful information leaflets.
Regulations enforced by Local Authorities
Local Authorities have a big part to pay in enforcement of standards. These are the main areas covered:
The Housing Health and Safety Rating System
This is set out in Part 1 of the Housing Act 2004 and is a system used now to assess the safety of all residential accommodation although it is mostly used for rented property, in particular Houses in Multiple Occupation (HMOs). Inspections are carried out by Environmental Health Officers.
Properties are assessed against 29 hazards and where ‘category 1’ hazards are found, officers are supposed to serve an improvement notice and enforce this by bringing a prosecution in the Magistrates Courts if not complied with.
However as discussed in the Battersby Report, relatively few prosecutions are being done nationally although standards are known to be very poor in many areas.
The main reasons for this are believed to be the difficulty and cost of bringing prosecutions, and lack of local authority staff to do this (many staff have been made redundant recently as part of Local Authority cost cutting exercises).
This, combined by the low fines awarded by the courts which tends to disincentivise officers from bringing claims in the first place, means that these regulations are not being used as effectively as was presumably intended.
There are many additional requirements placed on landlords of HMO properties as these are believed to pose greater risk to tenants.
Regulations include management regulations and amenity standards, plus the larger HMOs needs to obtain a license. The actual standards vary across the country as some Local Authorities impose additional requirements, so landlords wanting to know what their obligations are should consult their local authority.
These regulations were brought in, in 2008 and require landlords to obtain an energy performance certificate and provide a copy of this to tenants before the property is let to them. The intention behind the regulations is to encourage landlords to actually follow the guidance in the certificates and improve the energy efficiency of the property.
However the regulations do not seem to have been particularly successful and it is reported that most tenants neither know about the regulations nor care about receiving the certificate.
Of course landlords also need to comply with other relevant regulations such as the building regulations, regulations regarding fire safety, smoking and the like.
Regulations governed by the Civil Law
The Unfair Terms in Consumer Contracts Regulations 1999
These regulations come from a European Directive which all EEC countries are obliged to incorporate into their legislation. They are designed to protect consumers from harsh contract terms in contracts between businesses and consumers.
Their main application so far as landlords and tenants are concerned is tenancy agreements although they also apply to agency agreements between letting agents and landlords (where the landlord is a consumer).
These regulations are enforced by the Office of Fair Trading (assisted by local Trading Standards Offices), who have issued guidance on unfair terms in tenancy agreements most recently in 2005.
Where they find that businesses are using contracts including unfair terms, the OFT will first request that the terms be changed. If the business refuses to do this, they will then issue proceedings for a declaration and an injunction restraining the use of the offending terms. As happened in the Foxtons litigation of a couple of years ago.
Tenants (or consumers generally) can also use the regulations as a defence in ordinary court proceedings where the business is seeking to enforce a contract clause which is unfair under the terms of the regulations.
The main problem with this however is that as an ‘unfair’ clause is generally one where the tenants rights are being breached, you need to have a good working knowledge of landlord and tenant law in the first place, to be able to recognise when this is happening. Knowledge which most tenants do not possess.
The tenancy deposit regulations
These came into force in April 2007 and require landlords to protect all deposits with a government authorised tenancy deposit scheme and serve a notice on tenant giving prescribed information about the scheme used.
The most effective penalty for non compliance is the fact that section 21 notices served will not be valid unless the deposit has been protected, so the landlord will be unable to evict. However this is of little use to tenants who have moved out and want their deposit money back.
The regulations were intended to provide tenants with the right to claim a penalty of three times the deposit sum if landlords fail to comply, but drafting deficiencies have resulted in Court of Appeal decisions which render the regulations virtually toothless, save in a few circumstances.
Unlike the other regulations discussed above, there is no organisation charged with overseeing and enforcing these regulations and therefore tenants whose landlords just refuse to comply, have nowhere official to turn to for help.
(Note – since this series was written, the tenancy deposit regulations have been amended – see >> here)
Regulation of landlords and letting agents
But what, gentle reader, you may be asking, about regulation of landlords themselves? And regulation of letting agents?
At present there is no regulation of either. Anyone can rent out property, or set up as an agent. There are no standards they need to comply with or regulations they need to adhere to in order to be allowed to rent out property or act as a letting agent.
Indeed it is not known how many landlords or agents there actually are, as there is no official way (other than perhaps via taxation records held by the treasury) to find this out.
I will be looking at this next week in the concluding part of this series.