As a Landlord of a domestic property then you have a duty under the Defective Premises Act 1972 to take reasonable care to see that tenants and visitors are safe from personal injury or disease caused by a defect in the state of the premises, which whilst not specifically mentioned, should include asbestos.
It is the landlord’s duty to ensure that a risk assessment is carried out and they can be prosecuted for failing to do so. A landlord can be guilty of a criminal offence if anyone is exposed to a risk from asbestos. If a landlord has any doubts regarding asbestos he must ensure that he employs a competent contractor to carry out a risk assessment and any repairs or other works. It is the Landlord’s responsibility to ensure that that the contractor is competent to undertake any works on his behalf. Any information about the presence of asbestos known to the landlord must be passed onto the contractor.
In all residential premises, any landlord who commissions repair or construction work has to comply with CDM Regulations which include an obligation to notify the present tenant of asbestos where the landlord is aware of this. A landlord who is an employer or who is self-employed must ensure that the Control of Asbestos Regulations are complied with in the case of domestic premises, including common parts. Any contractor must also comply with these Regulations. These Regulations require that a risk assessment is carried out before any work is started to see if asbestos is presence and to ensure that appropriate precautions are taken to deal with asbestos which is present.
With regards to communal areas of non-domestic premises’ special rules which include the common areas of blocks of flats and bedsits. These additional requirements however do not apply to individual self- contained units such as flats or single dwellings. Whether or not work is to be done, the landlord is obliged to carry out investigations as to whether or not asbestos is present in the common parts. If it is there they are required to monitor its condition as well as putting control measures in place. Anyone who may be at risk as a result (e.g. a contractor carrying out work) must be notified of the presence of asbestos. The measures must be kept under review, at least annually.
The Act was passed in March 2015 and, in relation to tenancies, principally covers the areas of:
1. Energy Performance Certificates
2. Tenancy Deposit Protection
3. Section 21 Notices and Disrepair
Energy Performance Certificates
From the 1st July 2015, all landlords will need to provide tenants with an Energy Performance Certificate (EPC) and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 Notice on the tenant, s/he will need to prove that the tenant has been provided with an EPC and a Gas Safety Certificate or s/he will be prevented from serving a Section 21 Notice.
Tenancy Deposit Protection
The landlord will be prevented from service a Section 21 Notice unless the appropriate information regarding tenancy deposit protection has been provided to the tenant.
The Deregulation Act 2015 clarifies some ambiguities relating to tenancy deposit protection which were not fully spelt out in the Housing Act 2004 and which were subsequently considered and ruled on in the Superstrike case and Ng v Charalambous. The Act has introduced a number of different measures which cover different scenarios.
A. If a landlord of a fixed term tenancy which started before April 2007 and then became a periodic tenancy after April 2007 (the Superstrike position), has not protected the deposit and given the prescribed information to the tenant by the 23 June 2015, then that landlord will not be able to do it afterwards and s/he will have to return the deposit to the tenant in order to serve a valid section 21 Notice.
B. If a fixed term tenancy started before April 2007 and became a periodic tenancy before April 2007 (the Ng v Charalambous position), a landlord must protect the deposit and serve the prescribed information on the tenant before serving a section 21 Notice. S/he can protect the deposit and serve the prescribed information at any time and there are no penalties for late compliance, but it has to be done before serving a section 21 Notice.
C. If a fixed term tenancy which started after April 2007 and has been subsequently renewed or become a periodic tenancy and the landlord protected the deposit and served the prescribed notice during the first term, the landlord no longer has to re-protect the deposit or re-serve the prescribed information. If the landlord did not protect the deposit and served the prescribed information during the first term, then he will need to return the deposit to the tenant before s/he serves a section 21 Notice.
Section 21 Notices
There are two main changes to Section 21 Notices – one in relation to the form and length of the Notice and the other in response to retaliatory evictions.
1. Form of Notice
From 1st July 2015
There are currently two types of Section 21 Notice: a section 21(b)(b) Notice, which is used during a fixed term tenancy, and a section 21(4)(a) Notice, which is used during a periodic tenancy or when a fixed term becomes periodic. Going forward, if the tenancy originated with a fixed term you can now use one type of Notice, regardless of whether it is currently fixed or periodic.
The more complex section 21(4) Notice only needs to be served if there has never been a fixed term or if the periodic tenancy is contractual (i.e. if it is there because the tenancy agreement says so).
The Deregulation Act will also take away the requirement to give the “last day of a period of the tenancy” in a section 21(4) notice.
From 1st October 2015
In addition to the changes in the types of section 21 Notice to be used, there is now a limited life span for the Notice. From 1st October 2015, a landlord will not be able to serve a section 21 Notice during the first 4 months of the originating tenancy and the Notice will only last for 6 months from the date of service. If the landlord does not issue possession proceedings during the 6 months from the date of service, s/he will need to serve a fresh notice and then wait for it to expire. This comes into effect for all new tenancies created after 1 October 2015 and will apply to all tenancies regardless of their start date from October 2018.
Other new changes, in England only, coming into effect under the Act.
There will be a prohibition on serving a section 21 Notice if a landlord has failed to give the tenant prescribed information, which is not currently known, although will probably be a statement of the tenant’s rights.
There will be a requirement that a landlord will be required to refund a proportionate part of any rent paid in advance if the tenant leaves early after service of a section 21 Notice.
2. Retaliatory evictions, health & safety and condition of premises
As from the 1st October 2015, the Deregulation Act will impose new conditions on landlords to ensure the health and safety of tenants within assured shorthold tenancies before a valid section 21 Notice can be served. Notices will be invalid in the following circumstances.
If it is served aftera tenant serves a written complaint about the condition of their rented property and the landlord fails to provide an adequate response. An adequate response is one provided within 14 days, specifying the proposed remedial action to be taken.
If the tenant then goes to the Local Authority and complains and they serve a 'relevant notice' on the landlord or carry out emergency remedial action then until the works are carried out and signed off by the local authority, the landlord will not be able to validly serve a section 21 Notice.
A relevant notice is basically an improvement notice or a notice regarding remedial action being taken by the Local Authority.
There are exceptions if:
It was the tenant who caused the damage to the property being complained about, and/or the property is genuinely on the market for sale (but this must be the open market and there must not be any intention to sell to a connected party).
The same rules will also apply to the common parts of a building (for example stairs and hallways outside rented flats) if the landlord had a 'controlling interest' and the condition of the common parts affected the tenants use of his/her rented property.
If no written complaint from a tenant has been received before a landlord serves a section 21 Notice, then it will not be affected by the above provisions.
The Electrical Equipment (Safety) Regulations 1994 and Plugs and Sockets (Safety) Regulation 1994.
The regulations require that all electrical appliances are safe and impose on the landlord an obligation to ensure that all appliances and installations are regularly checked and serviced.
A landlord or his agent has a duty of care to ensure that they have taken all necessary precautions to avoid supplying the tenant with an unsafe item. It is necessary to carry out regular visual inspection of all electrical plugs, sockets, leads, appliances and goods and any that are faulty must be removed and replaced.
Although there is no statutory requirement to have annual safety checks carried out on electrical equipment as there is with gas, we recommend that landlords have periodic checks done by a qualified electrician. We would also recommend that landlords arrange for electrical equipment to be PAT tested on a tenant changeover.
Failure to comply with the regulations is a criminal offence and may result in fines and custodial sentences.
Energy Performance Certificates (EPCs) are needed whenever a property is rented. You must order an EPC for potential tenants before you market your property to rent. This must be made available to tenants if they express an interest in letting your property as it is classed as material information about the property along with knowledge of the Council Tax Banding.
An EPC contains:
1. Information about a property’s energy use and typical energy costs.
2. Recommendations about how to reduce energy use and save money.
An EPC gives a property an energy efficiency rating from A (most efficient) to G (least efficient) and is valid for 10 years.
The Government is proposing that from April 2018, it will be illegal to let any property with an energy performance rating of F and G. Landlords have until 2018 to ensure their properties have an energy performance rating of at least an E. Various bodies and organisations are working with the Government and have been tasked with devising recommendations on the implementation of the 2018 regulations.
The Furniture and Furnishings (Fire)(Safety) Regulations 1988 (as amended) provide that specified items supplied in the course of letting property must meet fire resistant requirements.
The furniture covered by the legislation includes:
1. Sofas, settees, seat pads, bean bags.
2. Beds, futons, head boards, pillows.
3. Loose and stretch covers for furniture.
4. Garden Furniture suitable for use in a dwelling.
5. Nursery furniture
The regulations do not apply to:
1. Antique furniture or furniture made before 1950.
2. Bedcovers including duvets, loose mattresses, pillowcases or sleeping bags.
Items that comply will have a suitable permanent label attached. Any non-compliant items must be removed before letting the property.
Since 1 April 2009 landlords must ensure that anyone carrying out work on gas appliances at their property (including flues) are registered on the Gas Safety Register.
If an engineer, who carries out a check of a gas appliance, is not on the Gas Safety Register, residential landlords are in breach of Regulation 36 of the Gas Safety Regulations 1998 as well as the Building Regulations 2000. It will not be enough that the engineer is CORGI Registered. Non-compliance is a criminal offence and courts can impose unlimited fines and custodial sentences. A link to the Gas Safety Register is shown below.
The Gas Safety (Installation & Use) Regulations 1998.
The legislation requires that all gas appliances and flues in rented accommodation must be tested annually for safety by a competent engineer. Failure to comply with the regulations can result in a substantial fine or even, in the worst cases, imprisonment.
Only businesses with duly qualified engineers registered on the Gas Safety Register can carry out work on gas appliances and piping. Records of inspections must be made and kept and a copy of the safety certificate issued by the engineer must be given to the Tenant before the tenancy can commence as well as any future checks of the appliances within 28 days of the check being completed. It is good practice to keep maintenance records in order to be able to show regular maintenance and necessary repairs have been undertaken. "Gas Appliances" include any fitted gas appliance such as gas heaters, cookers and fires as well as central heating systems.
The Housing Act of 2004 allows the local authorities in England and Wales to assess housing conditions. Special rules apply to the letting of houses where there are a number of individual occupiers who do not form part of a household. An HMO in broad terms can be summarised as either:
A building (house) or part of a building (flat) in which live two or more households, comprising of three or more people (as their only residence) who share one or more basic amenities and for which rent is paid by at least one person for that occupation.
A building or part of a building which has been converted into and consists of self-contained flats but was not converted to the 1991 Building Regulations and still does not comply with them and less than two thirds of the self-contained flats are owner occupied.
In July 2006 new laws came into effect making licensing compulsory for HMO's that comprise of 3 or more storeys and have 5 or more occupants. The licensing is carried out by the local authority. Each authority has the power to set its own licence fees and make its own specific fitness requirements and standards. They will generally carry out a health and safety assessment of the property and take into account safe escape routes, fire alarm systems, proper amenities and standards of maintenance and repair.
The local authority has powers to ensure that the Landlord makes improvements where necessary.
To grant a license the local authority must be satisfied that the properties and tenancies are managed appropriately, the accommodation meets all minimum standards and that the proposed license holder, the landlord or managing agent are "fit and proper" people. Licenses may be issued with conditions attached such as landlord training and cannot be transferred to another person.
Penalties for breaching conditions of the licence or for operating an HMO without a licence can be a fine of up to £20,000 and any section 21 issued is invalidated until a licence is obtained and/or a tribunal can order that rent be repaid to tenants (in extreme cases).
For more information and a downloadable copy of an HMO license application go to www.leeds.gov.uk. Alternatively you can email firstname.lastname@example.org or telephone Leeds HMO licensing team on 0113 247 6248.
For further information on mandatory HMO licensing and to identify whether a property needs licensing you can visit: www.gov.uk/private-renting/houses-in-multiple-occupation.
From 1 October 2006, the Regulatory Reform (Fire Safety) Order 2005 also began to apply to HMOs. Under the Order, a 'responsible person' must carry out a fire risk assessment of the shared parts. A responsible person is anyone who has control of the premises; or a degree of control over certain areas. In these circumstances this is likely to be the landlord; although this responsibility may be delegated to a competent person. However, legal responsibility would always rest with the landlord in the event of any contravention under the order.
We recommend that landlords review their fire risk assessment annually. Details of the requirements of the fire risk assessment can be found at: www.communities.gov.uk/publications/fire/regulatoryreformfire.
From 1 February 2016, all landlords will need to check that someone has the right to live in the UK before letting a property to them. This includes landlords who take in lodgers or sub-let property.
In most cases you’ll be able to carry out the checks without contacting the Home Office. All you need to do is check evidence of a person’s identity and citizenship, for example a passport or biometric residence permit.
The right to rent checks currently only apply to the following but may be rolled out countrywide in due course:
1. Landlords, homeowners and letting agents in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton
2. All adults aged 18 and over living at the property
3. New tenancy agreements starting on or after 1 December 2014
If you let a property after this date to someone who doesn’t have the right to rent, you could be fined up to £3,000.
For more information please visit the government website: www.gov.uk/government/collections/landlords-immigration-right-to-rent-checks.
All residential properties which are rented out must now have a risk assessment undertaken to determine the risk of Legionella.
Legionellosis is a collective term for diseases caused by Legionella bacteria including the most serious Legionnaires’ disease which is potentially a fatal form of pneumonia and everyone is susceptible to infection. The risk increases with age but some people are at higher risk including:
1. People over 45 years of age
2. Smokers and heavy drinkers
3. People suffering from chronic respiratory or kidney disease
4. Those with diabetes, lung and heart disease
5. Anyone with an impaired immune system
The bacterium Legionella pneumophila and related bacteria are common in natural water sources such as rivers, lakes and reservoirs, but usually in low numbers. They may also be found in purpose-built water systems such as cooling towers, evaporative condensers, hot and cold water systems and spa pools.
Legionella bacteria are widespread in natural water systems, e.g. rivers and ponds. Outbreaks of the illness occur from exposure to Legionella growing in purpose-built systems where water is maintained at a temperature high enough to encourage growth.
Carrying out a risk assessment is your responsibility and will help you to establish any potential risks and implement measures to either eliminate or control risks.
To identify the risks in your water system you, or a competent person who understands your water systems and any associated equipment, should establish any possible exposure to Legionella risks, as part of a risk assessment.
Your risk assessment should include:
1. Management responsibilities, including the name of the competent person and a description of your system;
2. Any potential risk sources;
3. Any controls currently in place to control risks;
4. Monitoring, inspection and maintenance procedures;
5. Records of the monitoring results, inspection and checks carried out;
6. A review date.
If you decide that the risks are insignificant and are being properly managed to comply with the law, your assessment is complete. You will not need to take any further action, but it is important to review your assessment periodically in case anything changes in your system.
Landmark case ruling now means that landlords and lettings agents have added responsibilities on repairs of their properties. It has always been that landlords and lettings agents were not liable to carry out repairs on outside areas of their tenants’ accommodation; (common halls, pathways, gardens etc.) and that repairs are carried out when their tenants inform them of a problem. Now this is no longer the case due to a Court of Appeal ruling on the Edwards vs. Kumarasamy case.
In Section 11 of the Landlords and Tenant Act 1985, the landlord has a legal duty to ensure that the rented ‘home’ of the tenant(s) and its exterior are maintained in a good and safe state. However in this case the tenant, Mr. Edwards who lived in a flat owned by landlord Mr. Kumarasamy, fell over a paving stone that was not level when on his way outside to put his rubbish in the common area for dustbins and car park, and was injured. He sued the landlord for damages and was awarded compensation. The ruling on the case now means that landlords are liable for repairs, even in areas outside the property that they do not own. These areas include any area that the landlord has a right of access to, a private drive for the property and communal areas in blocks of flats etc.
Tenants do not have to report any problems so all landlords and lettings agents must be on the alert for likely problems and take the necessary actions.
From the 1st October 2015, subject to Parliamentary approval, regulations require both smoke alarms and carbon monoxide alarms to be installed in rented residential accommodation. Changes are also made to the licence requirements in relation to houses in multiple occupation (HMOs), such as shared houses and bedsits which require a licence and also in relation to properties which are subject to selective licensing.
This Guidance is based on draft regulations which have been published. The Regulations apply both to houses and flats and only apply in England; not Wales.
These duties apply to residential premises which means premises all or part of which comprise a dwelling. Thus, it will apply to a flat over a shop. If the property is a licensed HMO or subject to selective licensing there are mandatory conditions imposed on licences. In the case of a licensed HMO or where there is a selective licensing it is the responsibility of the licence holder to ensure that mandatory conditions imposed in relation to the installation of alarms are complied with.
The premises must be let under a specified tenancy or a licence. This is a tenancy or licence of residential premises which grants one or more persons the right to occupy premises as their only or main residence. Rent or a licence fee must be payable.
The requirements are imposed on the immediate landlord. There is an exemption for providers of social housing. A tenancy includes a licence to occupy a residential premises and it also extends to subletting for these purposes.
There are various exemptions:
1. A tenancy under which the occupier shares any accommodation with the landlord or a member of the landlord's family. There must be a sharing of an amenity which includes a toilet, personal washing facilities, a kitchen or a living room but excludes any reference to storage or access.
2. A tenancy which is a long lease or which grants a right of occupation of the premises, i.e. for more than 21 years.
3. Student halls of residence.
5. Care homes.
7. Accommodation relating to health care provision.
During any period beginning on or after 1st October 2015 while the premises are occupied under a tenancy (or licence) the landlord must ensure that a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation. A living room will include a lounge dining room and kitchen as well as a bathroom or toilet. It also includes a hall or landing. This means that a smoke alarm must be provided in working order on each storey. Since the regulation relates to each storey in the premises this suggests that a separate alarm is not needed on a half landing as these would not be regarded as individually being a storey. As regards individual flats located on one floor then there will have to be at least one alarm within the flat itself or alternatively are provided outside the flat on the same floor of the building, i.e. a communal alarm.
Likewise, for flats comprising more than one storey there will need to be a smoke alarm on each floor.
It is the location of an alarm which sounds which is crucial; not the positioning of detectors.
The Regulations do not stipulate what kind of alarm is required. Ideally it should be a hard wired alarm system. It can, however, be a single standalone alarm. Landlords are recommended to fit ten year long life non-tamper proof alarms, otherwise there is a problem of batteries being taken out and not being replaced.
Carbon Monoxide Alarms
Likewise, during any period beginning on or after 1st October 2015 when the premises are occupied under a tenancy or a licence a carbon monoxide alarm must be provided by the landlord in any room in premises which is used wholly or partly as living accommodation which contains a solid fuel burning combustion appliance. This applies to any kind of wood burning stove or an open coal fire. It will also extend to equipment such as a solid fuel Aga in the kitchen.
This is already a requirement with new installations of solid fuel burning combustion appliances as under Building Regulations there is a requirement to install a carbon monoxide alarm. This is now extended to any existing appliances already in place before Building Regulations imposed this requirement or where building regulations are not observed.
The landlord is specifically required to carry out a check to ensure that smoke alarms or carbon monoxide alarms installed to comply with the Regulations are in proper working order on the day a tenancy begins where it is a new tenancy. A new tenancy is a tenancy granted on or after 1st October 2015.
For these purposes a new tenancy does not include a tenancy which was granted where the original agreement was entered into before 1st October 2015; nor does it include a periodic statutory tenancy which arises when a fixed term shorthold tenancy ends. It does not apply to a tenancy which starts at the end of an earlier tenancy where the landlord and tenant are the same as under the earlier tenancy and the premises are the same (or substantially the same) as those under the earlier tenancy. Therefore this express requirement to check does not apply to the renewal of a tenancy for the same premises by the same landlord to the same tenant.
However, it would be prudent to ensure that any smoke alarm or carbon monoxide alarm are installed to meet these requirements and that they in good working order and checked periodically to see that they are working properly. There is no reason why this responsibility should not be placed on the tenant but the landlord will then have to make ensure that the tenant does actually carry out the checks.
HMOs & Selectively Licenced Properties
As from 1st October 2015 new licence conditions will be included requiring the provision of smoke alarms and fire detectors. In the case of HMO licences they already contain provisions for alarms in any case. The regulations themselves are not applicable in this kind of accommodation.
The local authority is responsible for enforcement.
A local authority must serve a remedial notice within 21 days where they have reason to believe that the landlord is in breach of any of these duties relating to smoke alarms or carbon monoxide alarms.
A remedial notice must specify the action to be taken within 28 days of the date of the service of the notice. It allows the landlord 28 days to make representations against the notice.
The landlord must then take the required action within the periodallowed. There is an excuse for a landlord for non-compliance with the notice if the landlord can show that he has taken reasonable steps to comply with the duty, but the landlord is not required to take legal proceedings. This could cover a situation where the tenant refuses access to allow the work to be done.
If the landlord fails to take action then the local authority must, if it has the necessary consent to do so, arrange for the work required to be undertaken within 28 days of consent being obtained if consent of the occupier of the premises is required. Therefore if a local authority is also refused access by the tenant it cannot take the necessary steps itself.
If the landlord is in breach the local authority may require the landlord to pay a penalty charge up to a maximum of £5,000. It has discretion whether or not to impose this charge. If it intends to impose a charge it must serve a penalty charge notice within six weeks from when it is first satisfied that a breach has occurred. A right to make representations against the penalty notice is given and the local authority may reduce the charge for prompt payment.
If the local authority upholds a penalty charge notice there is a right to appeal for the landlord to the First Tier Tribunal.
The Grounds of Appeal are:
1. Local authority has made an error of fact or law
2. The amount of penalty charge is unreasonable
3. The decision to impose a penalty is unreasonable for any other reason
Payment of the penalty is suspended pending any appeal.
Local Authority Penalty Policy
Each local authority must publish a statement of principles which will be followed in determining the amount of any penalty charge.
This statement will be taken into account in deciding on an individual penalty for a particular case.
This guide is based on draft regulations which have yet to be formally approved by Parliament.
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