Here are two cases from the Destin Private Sector Tenancies case law digest - authored by Jan Luba.

Health and Safety Executive v Khalid Hussein - Walsall Magistrates Court – November 2011

In this case the gas boiler broke down in January 2011.  Despite having an improvement notice served on him requiring him to produce a gas safety certificate for the gas installations in the house by May 2011, landlord Khalid Hussein did not take action until October.

When an engineer finally arrived to do the work, found the gas cooker to be dangerous and had to isolate it.  A certificate was finally produced in October.

After pleading guilty to section 33(1)(g) of the Health & Safety at Work Act 1974 and regulation 36(3)(a) of the Gas Safety (Installation and Use) Regulations 1998, Hussein was fined £2,000 and ordered to pay costs of £3,000.

The case is reported on the HSE website here.

Health and Safety Executive v Long – City of London Magistrates Court – December 2011

This was an extremely serious case, which it is clear from the report on the HSE website, could easily have been fatal

City of London Magistrates’ Court heard that on 4 March 2009 ambulance and fire crews were called to an address in Elgin Road, Croydon, where they found several people suffering flu-like symptoms and dizziness. One tenant thought he was having a heart attack.

Five residents were taken from the property, belonging to landlord James Long, to Princess Royal University hospital suffering from carbon monoxide poisoning. Three needed to be transferred to Whipps Cross hospital for specialist hyperbaric treatment.

A subsequent HSE investigation found that:

• there was no landlord’s gas safety certificate;

• the gas hob, boiler and flue had not been inspected by a qualified gas engineer; and

• the carbon monoxide was coming from a gas boiler in the cellar. Gas engineers found a taped-up air vent in the cellar.

After pleading guilty to breaching regulation 36(3)(a) of the Gas Safety (Installation and Use) Regulations 1998, Long was fined an eye popping but entirely justified £24,000 and ordered to pay costs of £6,000.

The new form is considerably more streamlined and is more precise in the information asked for.  However it is now completed almost entirely by ticking boxes which makes it difficult if there is something unusual you need to explain.

In particular the old paragraph allowing additional information to be provided has been completely removed.  No doubt this is due to the Judges being fed up with some claimants using this to add irrelevant information (generally in crabby handwriting in green ink), but it makes it a bit difficult if there is something relevant you want the Judge to know about.

For example I can think of two situations where you may want to give the Judge extra information.  One is where you have used a section 21 which does not give an expiry date, under the rule first allowed in the case of Lower Street Properties v. Jones.  The other is where the landlord is a landlord by purchase and you want to provide further information about this (after having answered no to question 4b).

There are I suppose two ways you can deal with this:

• One is write on the form at the relevant point “See annexed page headed A” or something similar and then write your explanation on the extra page and include this with the court paperwork.

• The other is to create an extra field on the form, but you need to have Adobe Pro to do this.

Perhaps the most confusing part of the form is paragraph 7 which deals with tenancy deposits.  The form refers to a “Tenancy Deposit Scheme (TDS)” and asks for a reference number.  Some people might take it that the wording just refers just to the scheme run by the company called the Dispute Service (and generally known as TDS).    Whereas this question must be referring to the ID number issued by any of the schemes.

It is in retrospect extraordinary that The Dispute Service were allowed to call their scheme Tenancy Deposit Scheme or use the initials TDS, as it is so inherently confusing.

I also note that the form seems to contemplate that not more than two claimants or defendants will ever be involved in this kind of claim, as only two boxes are provided for their details! I suppose if necessary two names can be squeezed into each of the boxes.  It should not be necessary to have more than four names as only four people can hold a legal estate in land.

My Do it Yourself Kit has been amended now to take account of the new form, but I am planning on completely re-doing the entire kit in a new format, so watch this space!

What do people think of the new form N5b?  Are there any other problems with the new format?

The report, the Gas Safety Trust Carbon Monoxide Trends Report – 1996 to 2010, has some worrying conclusions.

This post looks briefly at these, although for more detailed information you should take a look at the report itself.

The good news is that the overall numbers of fatalities seem to have gone down in recent years. However any death or serious illness is something to be avoided. Here are the reports findings.

The people most at risk

The report finds (as I say in the heading to this post) that the risk for people in the private sector is 50% more than for people living in the social rented sector or in their own privately owned home.  It has improved since 1996, probably due to the gas regulations, however this is still a worrying statistic.

The other worrying result, is that older people – most particularly those over 70 – are five times more at risk that those of other ages. The reason for this?

The elderly tend to spend a disproportionately large amount of time indoors and in the home compared with other age ranges.

This fact coupled with the probable insensitivity to the physiological effects of CO compared with others makes the elderly significantly more vulnerable and at risk of being fatally injured as a result of natural gas related CO poisoning.

Additionally, it may be that the elderly tend to possess older gas appliances.

The properties most at risk

The report then looks at the type of property and finds that terraced houses disproportionately higher risk. Detached properties it seems are the lowest risk, due to ‘fluing and ventilation issues’.

The age of a property does not seem to have much effect although more recently built properties have marginally less risk than others.

Appliances most at fault

It seems that appliances located on the ground floor tend to cause the greater problems, and will typically be in a room rather than a cupboard.

Far and away the biggest problem appliances are those used for central heating – the percentage ranging over the years from 59% (the lowest) to 87% (the highest). Gas fires seem to pose considerably less risk with percentages ranging between 19% and 8%.

Of the central heating appliances involved, the most risky are the older and non condensing varieties, and boilers of over 21 years now feature in about 50% of incidents.

The most common fault reported appears to be with ventilation, which makes sense.

Servicing and visits

Strangely it seems that a very large proportion of the problematic appliances had been inspected within the last 6 months, although the most common cause of incidents is said to be lack of servicing. This apparent contradiction is, suggests the report, probably because the visits were ‘on demand’ (ie callouts because of a problem)  rather than regular service visits.

Up until 2005 (we are told) incidents were more associated with properties where there were no service contracts, but since then this seems to be less important.  Which makes one wonder if this means standards are falling.

Areas most at risk

This seems to be the most densely populated areas, London and the West Midlands. Which makes sense as they are also probably areas with the largest concentration of rented property.

Report conclusions

These are the main conclusions reached by the report:

• Greater support should be given to elderly people, particularly in connection with replacing older appliances

• There has been significant improvement in standards in the rented sector due to the regulations, but it would (the report considers)  be better to require landlords to have appliances serviced annually rather than just checked for safety.

• Owners of older boilers should be given incentives to replace them, perhaps with a more energy efficient model

• Something should be done about the significant number of unregistered gas operatives which are apparently still working in the industry

Further thoughts

I don’t think we should lose sight of the fact that standards have improved, which is a good thing.

Also the overall numbers seem quite small, compared to the number of people living in rented accommodation for example, so it does not look as if we are looking at a widespread problem.

The greater risk of incidents involving people over 70 is not unexpected, for the reasons given by the report.  However the 50% greater likelihood of an incidence in a private rented property is unacceptable and it is worrying that many appliances involved in incidents apparently had recent call outs.

What do you think?

The reason for this, as I explained in my first Foundations in Law post, is that a tenancy is a type of ownership of land. A boat cannot be classed as land, even if it is permanently moored.

Case law

The leading case here is a case called Chelsea Yacht and Boat Club Ltd -v- Pope and was decided by the Court of Appeal in 2000.

Here the boat, a houseboat called The Dinty Moore, which was moored upstream of Battersea Bridge in London, was secured by ropes to rings in the embankment and an anchor, and from time to time it rested on the river bed below. However the Court held that this was not sufficient to actually make it part of the land itself, which was necessary it it was gong to be the subject of a tenancy.

There has been another Court of Appeal decision on this point recently called Mew and Tristmere Ltd  (which you can read about in more detail on Nearly Legal). Here again the Court held that as the boats were capable of being moved (even though that would probably result in their destruction) they could not be classed as land and therefore could not be the subject of a tenancy.

Legal implications of not being a tenancy

So what are the implications of this if you live in a boat which you rent from your landlord? The main points are:

• you do not get the benefit of the statutory repairing covernants and your landlords obligations as regards repair are as set out in your rental agreement
• any deposit you pay does not need to be protected in a statutory scheme as this only applies to deposits paid with assured shorthold tenancies
• you cannot refer your rent to the Rent Assessment Panel during your first six months as assured shorthold tenants can
• you will not have the benefit of the ‘covenant of quiet enjoyment‘ (although you will have the right to enforce the terms of your contract)

However so far as I can see, you will still have the benefit of the Protection from Eviciton Act as this applies to licenses as well as tenancies, and the legislation refers to ‘premises’ rather than ‘dwelling house’.

You will also have the benefit of the Unfair Terms in Consumer Contracts legislation (provided your landlord can be classed as a business and you can be classed as a consumer) as this covers all types of contract.

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.

HMO Regulations

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.

Energy Performance

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.

Other regulations

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.

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.

(See the index to the whole series here)