Foundations of Landlord & Tenant Law part 15
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. I have tried to mention most of these here although this is not a complete list.
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 Health 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 play in the 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 councils have been criticised for bringig relatively few prosecutions nationally even though 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).
However it is hoped that the new penalty charge notices (introducedin the Housing and Planning Act 2016) where councils can keep the fines, will help finance council enforcment sections and allow councils to employ and train more staff.
Note also that under new rules, landlords cannot now serve a valid section 21 notice within 6 months of receipt of various Local Authority notices the most significant being an improvement notice.
There are many additional requirements placed on landlords of HMO properties as these are believed to pose a 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.
Note that HMO licensing will increase from 1 October 2018 when the three storey limit for mandatory HMO licensing is due to be removed.
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.
New rules have now been introduced with effect from 1 April 2018 making it mandatory for properties of all new tenancies and renewals of existing tenancies to have a minimum energy efficiency rating of E
Of course, landlords also need to comply with other relevant regulations such as the building regulations, regulations regarding fire safety, smoking and the like.
The Right to Rent rules
These are enforced by the Home Office and have elements of both criminal and civil law. Landlords and agents who fail to comply can be fined and prosecuted under the criminal law but tenants who are found to be without a right to rent can be evicted under the civil aw.
Note though that the regulations are being challenged and it is possible that they could be withdrawn if the challenge is sucessful.
Regulations governed by the Civil Law
The Unfair Terms rules
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. They now form part of the Consumer Rights Act 2015.
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 now enforced by Competition and Markets Authority (formerly by the Office of Fair Trading).
The best known litigation in this area was probably the Foxtons litigation in 2009/10.
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 also allow tenants to claim a penalty of up to 3x the deposit sum although the procedure for claiming this through the courts is fairly complex. There are now some no win no fee firms willing to help tenants with this in suitable cases.
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 the regulation of landlords themselves? And regulation of letting agents?
This has changed somewhat since this article was first written. Agents now have to join a Proerty Redress Scheme and rules regarding their fees were introduced in the Consumer Rights Act.
Further new rules are being introduced by the Tenant Fee bill (which will apply to both landlords and agents) and under new legislation being planned by the government.
There are even more changes in Wales where landlords and agents now need to be registered with Rent Smart Wales.
I will be looking again at this next week in the concluding part of this series.