Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Electrical Safety in Dwellings- A Reminder

The Gas Safety (Installations and Use) regulations 1998 require landlords to ensure that the gas appliances in their property are safe.  These regulations were supported and policed by the Council for Registered Gas Installers (CORGI) and now the Gas Safe Register.

There are similar statutory requirement for landlords to maintain electrical systems under their control in a safe condition, the legislation is less explicit and there is no electrical equivalent of the Gas Safe Register.

There are 2 main Acts of Parliament that place a statutory duty on Landlords to ensure that the electrical equipment in their properties is safe.

1. The Consumer Protection Act 1987

2. The Health and Safety at Work etc. Act 1974

The Consumer Protection Act affects all persons who let property in the course of their business because it defines them as “suppliers”, i.e. they are supplying goods to the tenant. There are several items of secondary legislation under the umbrella of the Consumer Protection Act that are directly relevant to the supply of electrical goods, including:

1. The Low Voltage Electrical Equipment Regulations 1989

2. The Electrical Equipment (Safety) Regulations 1994

3. The General Product Safety Regulations 1994

4. The Plugs and Sockets etc. (Safety) Regulations 1994

A failure to comply with the Electrical Equipment (Safety) Regulations 1994 and the The Consumer Protection Act 1987 is a criminal offence and may result in:

  • A fine of £5,000 per item not complying
  • Six month’s imprisonment
  • Possible manslaughter charges in the event of deaths
  • The Tenant may also sue you for civil damages
  • Your property insurance may be invalidated

The Consumer Protection Act provides a defence of “due diligence” if it can be shown that the landlord or agent took all reasonable steps to avoid committing an offence – you will need documentary evidence of this.

The regulations are enforced by the Health & Safety Executive.

Although there is no statutory requirement to have annual safety checks on electrical equipment (PAT testing) it is advisable to have periodic checks done by a qualified electrician.

Electrical appliances and fittings within the property need to be SAFE and in good working order, but the legislation does not require the landlord to obtain a electrical safety certificate. However, if any electrical fittings or appliances within the property cause harm to a tenant the landlord/agent could be held liable.

Therefore in order to minimise the risk of something going wrong with the electrics landlords and agents are advised to make visual inspections and have periodic checks carried out by a qualified electrician. The landlord could also keep supplied appliances to a minimum, ensure that operating instructions and safety warning notices are supplied with the appliances and make sure that tenants know the location of and have access to the main consumer unit, fuses and isolator switch.

In January 2005 legislation under Part P of the Building Regulations made it a requirement that for certain types of electrical work in dwellings, plus garages, sheds, greenhouses and outbuildings to comply with relevant standards. It is therefore necessary to ensure that a competent electrician must carry out the work. For DIY electrical work you must belong to one of the Government’s approved Competent Person Self-Certification schemes or submit a building notice to the local authority before doing the work. Any Landlord, regardless of whether they see themselves as running a business or not, should look to comply with these regulations to ensure that all electrical equipment supplied is safe.

It should also be remembered that Houses of Multiple Occupation have their own electrical testing requirements.  The Management of Houses in Multiple Occupation (England) Regulations 2006 require that HMOs should have their fixed wiring tested every five years.  This applies equally to licensed and unlicensed HMOs.

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LACORS on Cancellation of Contracts

On my weekly NFOPP email I was directed to this article on their website which mentions LACORS guidance on the Cancellation of Contracts Made in a Consumer’s Home or Place of Work Etc Regulations 2008.
Unsurprisingly LACORS takes the view that the Regulations apply to Estate (and presumably also Lettings) Agents.
What is more interesting is one of the scenarios in the guidance which we have reproduced here:

2.3.3 – During an estate agent’s visit to the consumer’s home, if the consumer has been able to review the information required by the Estate Agents Act 1979 and the Estate Agents ( Provision of Information) Regulations 1991 and then agrees to the quotation provided by the estate agent and says “Yes” to contracting with the estate agent for his services. The estate agent says “I’ll go back to the office and finalise the contract and send it through” – the Regulations are likely to apply as the contract is made following the offer made by the consumer. The estate agent needs to be careful to give the written notice of the right to cancel at the point the offer is made by the consumer.

This is an interesting view. LACORS is essentially saying that if a verbal agreement is made for business to commence then the notice must be handed over at that stage and cannot wait until the written contract is signed.
This is, of course, quite logical as a verbal agreement concluded on agreed terms is enforceable immediately and does not need to be reduced to writing. However, agents should take care and consider at what stage they are at with a landlord if they are talking to him face-to-face in his own home or place of work. If they are taking away from the meeting that they can immediately start marketing a property and can get th terms signed along the way then they should have handed over a cancellation notice and could potentially be liable to prosecution.

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OFT v Foxtons- A Clarification

It is not normally the practice of this blog to comment on matters that are still before the Courts but we are becoming frustrated by the large amount of incorrect information about this matter that is floating around.

Currently the OFT has suggested that certain aspects of Foxtons terms of business may be unfair.  They have particularly focused on the practice of seeking a fee on the sale of a property by a landlord to a tenant where the tenant was introduced by Foxtons and on the practice of seeking a fee where a tenancy which was carried out on a let only basis is renewed for a further period without any involvement by Foxtons.

The OFT has not said that all agents fees or even all renewal fees are unfair. They are particularly focused on those issues where the agent has not done any work to secure the renewal.  They have also suggested that charging the same fee on a renenwal as on an initial rental may also be unfair as the amount of work done in the two situations is different.

At the current time (21 May 2009) none of these fees are unfair and they will not be so until the High Court rules on the point (probably mid to late June 2009).  Even then there is a high chance of appeals to the Court of Appeal and possibly further.

In terms of outcomes there is a large range of possibilities.  The Court could decide that the specific clauses used by Foxtons are unfair or that any similar clause used by Foxtons is unfair or that clauses of this type are generically unfair and can also choose whether to impose this view only going forwards or retroactively.

Finally it should be noted that the OFT case is based on a general challenge and is therefore focused on the idea of a ‘typical consumer’.  This leaves open the option in any other case for an agent to show that their landlord was not a ‘typical consumer’ and that they should not be protected by the decision.

In any event there is still a long way to go.

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Proper Place for TDS Claims

The Court Service has published guidance setting out that the proper route for bringing claims under the Tenancy Deposit Provisions of the Housing Act 2004 is via Part 8 of the Civil Procedure Rules.

Key points to note are:

  • these claims are automatically allocated to the multi-track which means that legal costs are recoverable irrespective of the size of the claim;
  • the claim must be commenced on a form N208 and not the standard N1 claim form;
  • the claim cannot be commenced using the moneyclaim online service;
  • the Claimant is required to serve a witness statement with their claim form setting out their evidence;
  • the Defendant is required to serve a witness statement with its aknowledgment of service setting out its evidence;
  • failure to serve witness statements at the appropriate times will preclude reliance onm evidence save by permission of the Court

A great many claims are currently not being commenced correctly and are not having the appropriate procedure followed.  While it is unlikely that a claim will be struck-out for following the improper procedure, a defendant may be precluded from giving evidence and there may be costs implications for both parties if the correct procedures are not followed.

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Changes to ASTs

The government has published a response to the Rugg Review.

One of the proposed changes is that the upper limit threshold on Assured and Assured Shorthold Tenancies (set at £25,000 by para 2(1)(b) of Schedule I of the Housing Act 1988) should be raised to £100,000.

Section 2A of the Act allows this amount to be easily varied by Stautory Instrument and we have heard on the grapevine that the government is minded to do this as soon as October this year.

This will have far reaching consequences, particularly in the South-East as the majority of higher value tenancies that were outside the Act will not be brought into it. This will mean a large increase in the number of tenancies requiring to have their deposits protected and changes in the way possession proceedings are brought for these tenancies.

There are some important uncertainties. Will it be the case that the raise will be retroactive such that all tenancies under a rent of £100,000 per annum will automatically fall inside the Act? If so, this will affect tenancies already in place and will mean that their deposits will need to be placed in protection.

It would be better if the change was made so that only new tenancies after the start date were caught. However, in that case it will be necessary to bear in mind that renewal tenancies will drop inside the Act.

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