Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Landlords’ safety obligations

Thanks to our friends at Nearly Legal we have been alerted to the recent case of Gillian Drysdale v Joanne Hedges (2012) QBD 27/07/2012. A tenant slipped off some steep steps while moving her belongings in at the beginning of the tenancy and injured her back. The steps were painted with gloss paint which became slippery while wet, and there was a dangerous drop unprotected by railings. The tenant claimed against the landlord under section 2 of the Occupiers Liability Act 1957 (OLA), section 4 of the Defective Premises Act 1972 (DPA), as well as under his common law duties. You can read a full summary here.
In short it was decided:
1. Section 2 OLA did not apply at all – a landlord’s duty is defined in section 4 of the DPA and it is this Act which applies.
2. Section 4 DPA provides that where there is an express or implied right of access for the Landlord to carry out repairs, there is a general duty of care to occupiers (and their possessions) to take reasonable care to ensure safety from damage or injury as a result of any defect which the landlord is liable to repair, and which they are – or should be- aware of. (Note that this duty applies without actual notification if the landlord should reasonably have been aware). The court confirmed that these provisions did not translate into a duty to make safe.
3. Common law duty of care: the court confirmed the principle that there was no requirement to make safe a property let in a dangerous condition. ( In this particular case there was no common law requirement to make the drop safe, but there was a duty of care not to create an unnecessary risk of injury).
The claim was dismissed.
So what does this mean for Landlords? It does not mean that they can leave their tenanted properties in a dangerous condition. It means that the court confirmed the position with regard to the claimant’s claim and the landlord’s liability under the DPA, OLA and his common law duty of care. There are however safety standards set out in other legislation and regulations.
Landlords will be aware of the provisions of the Housing Act 2004. The Housing Health and Safety Rating System ( HHSRS) introduced by part one of the Act imposes a set of safety obligations on Landlords, including obligations in relation to slips, trips and falls. Under the HHSRS a local authority, by way of an environmental health officer, can inspect a property for hazards and require that remedial action be taken to diminish a risk. (NB, HHSRS applies to all residential properties, not just rental properties).
Houses in Multiple Occupation ( HMOs) are subject to enhanced safety obligations . See our blog here
Further all landlords will be aware of the Gas safety ( installation and use) Regulations 1998 which we have blogged on here.
So although in this particular case the tenant was unable to claim against the landlord under the heads of claim pleaded, there are nevertheless requirements on landlords to keep their properties safe. We often get queries on our Helpline as to safety in rental properties. Landlords and agents should bear in mind not only their repairing obligations but also the requirements of HHSRS and the raft of other legislation designed to keep occupiers safe.

Filed under: England & Wales, , , , ,

It’s (not) a gas

A Landlord has been prosecuted, found guilty, fined £2,000.00 and ordered to complete 150 hours’ community service for breaching the gas safety regulations including using unregistered gas engineers for gas safety checks. The HSE report can be read here.

Landlords and agents are reminded that there is no defence to non compliance with the regulations. There may be instances where the HSE decides not to prosecute ( e.g where tenants have refused access) but without mitigating circumstances a landlord must comply. To find or check a Gas Safe Registered engineer in your area click here.

Filed under: England & Wales, FLW Article, , ,

Carbon Monoxide

In December 2010 the Health and Safety Executive released a Safety Notice to raise awareness of the potential dangers from certain types of flues connected to gas-fired central heating installations in some properties.

Unfortunately the Notice was released following the death of a person in a property earlier that year but there is now an obligation on Landlords to take action before the 31 December 2012.

Where boilers are located away from external walls, flues are more likely to run through ceiling (or wall) voids. In such cases when the gas appliance is serviced or maintained it can be difficult, if not impossible, to determine whether the flue has been installed correctly or whether it is still in good condition.

Unless the gas engineer can make these checks they cannot ensure that the flue from the boiler is safe in order to comply with their legal duties. The engineer will therefore only be able to comply with his legal obligation if appropriate inspection hatches have been installed. Landlords are advised that after the 31 December 2012 if the hatches have not been installed the gas engineer will not carry out the inspection.

If the flue is not inspected and a fault overlooked, dangerous levels of carbon monoxide (CO) could be released into the living accommodation. CO is a colourless, odourless, tasteless, poisonous gas produced by incomplete burning of carbon-based fuels. It stops the blood from bringing oxygen to cells, tissues, and organs and can kill quickly, without warning.

We have blogged on the dangers of CO poisoning here and whilst landlords will note they have approximately 2 years to install the hatches, action should be taken sooner rather than later.

Filed under: England & Wales, England only, , ,

Gas Safety

The Old Bailey will this summer be hearing the case of a Plumber charged with the manslaughter of a woman who died of carbon monoxide poisoning. It is alleged he breached his obligations under regulation 26 (9) of the Gas Safety (Installation and Use) Regulations 1998.The Plumber has pleaded not guilty to the charges.

This case should serve as a reminder to landlords and agents to ensure they comply with the obligation to maintain all gas fittings and flues in a safe condition and that the gas safety check is carried out by a registered engineer every year.

Many agents contact us on the helpline in complete frustration due to the tenant’s refusal to grant access for these checks and given the potential consequences the frustration is understandable.

Whilst a landlord will not be able to transfer this responsibility onto the tenant in any circumstances the legislation does make it clear that the landlord is only required to take all reasonable steps to gain access for the checks. Reasonable steps do not include forcing entry or using management keys to gain entry in the absence of consent.

Possible options to gain access include applying for an access injunction or even applying for possession. The injunction is the quicker and potentially the more expensive of the two options and the threat of an injunction is possibly most effective when a tenant understands that the costs of any action will be sought against them.

Whilst it is accepted that this is a very difficult task in some cases, landlords are strongly advised to ensure that they retain confirmation of requests for access, cancellation notices, appointment cards, missed appointment cards and the like to defend their position when and if necessary.

Filed under: England & Wales, FLW Article, , , ,

Gas Safe Register reaches NI

The Gas Safe Register took over from CORGI in providing landlords gas safety certifications for England and Wales, Scotland and the Isle of Man in April 2009. Despite a few small issues they appear to have been fairly successful and have run a significant advertising campaign.

From 1 April 2010 the Gas Safe Register will be taking over from CORGI in Northern Ireland as well after the Health and Safety Executive Northern Ireland decided that it would be in their best interests to follow the same system as the rest of the UK.

Gas engineers should already be registering with the new scheme and agents and landlords should make sure that their regular engineers have done so well in advance of the changeover date as any certification produced by an engineer not registered with the new scheme after 1 April 2010 will not be valid. All engineers registered with Gas Safe will carry an ID card and an example of this can be found on their website. Hopefully, a similar advertising campaign will be launched in Northern Ireland to promote the new scheme.

Filed under: Northern Ireland,

Gas Safe Register Confusion

Gas Safe Register appear to be advising on their helpline that a landlord is obliged to obtain a new gas safety certificate every time a tenancy is entered into, notwithstanding any current gas safety certificate that is in place. This is not the position.

The Landlord (or the Agent if it forms part of the terms of business) is required to arrange the annual preparation of a gas safety certificate and ensure that throughout any tenancy a valid gas safety certificate is in place at all times.

An annual gas safety check must be carried out by a Gas Safe Registered engineer. A record of the safety check must be kept for 2 years. A copy of the certificate must be issued to each existing tenant within 28 days of the check being completed, and in any event before the commencement of a tenancy.

This is consistent with the advice as given on the Gas Safe Register website.

The relevant legislation can be read here.

Filed under: Uncategorized, ,

Gas Safe Register

Boarding my train to London this morning I saw a poster campaign for the new Gas Safe Register. The successor to the old CORGI Landlords Gas Safety Certificate regime. While it is good to see promotion of gas safety, landlords and agents should make sure they are familiar with the new system and ensure that all their contractors are properly registered.

Filed under: Uncategorized, ,

New Gas Safety Regime

From 1 April 2009 CORGI will no longer be the official gas safety regulation body. The role will be taken over by the Gas Safe Register which is operated by Capita.

This has occurred because CORGI’s contract with the HSE came to an end and, while they tendered for a renewed contract, they were beaten by Capita who have promised a gradual reduction in the cost to gas engineers as well as an aggressive public awareness campaign.

From 1 April engineers must be registered with the Gas Safe Register to carry out work. Old CORGI registrations will not be valid. Engineers have had since January of this year to sign up with the new scheme so there will be no grace period.

From a landlord or agents point of view it is important to check that gas engineers that have previously been used are registered with the new scheme. All members will have ID cards and they can be checked either on the register website or by telephoning 0800 408 5500.

Current landlords gas safety certificates issued by CORGI engineers will remain valid, even if they expire after 1 April 2009 but on expiry they will have to be replaced by certificates conforming to the new scheme. After 1 April any certificate produced by an engineer not registered with the new scheme will not be valid.

A leaflet is available giving more information which also includes a picture of the new ID card.

The responsibilities and penalties as regards failing to have a valid certificate remain unchanged.

Filed under: Uncategorized, ,

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