Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Time to get your house in order

Landlords are facing the prospect of wider and more severe sanctions for failing to keep rental properties in a safe and habitable condition.

From yesterday landlords who fail to comply with an Improvement Notice or Prohibition Order to ensure properties are safe and habitable face unlimited maximum fines in the magistrate’s courts. Previously there was a £5000.00 cap. That cap has been removed.

Further, Improvement Notices and Hazard Awareness notices in relation to category 1 and category 2 hazards are a “relevant notice” for the purposes of the proposed new section 21A of the Housing Act 1988, which is set to come in imminently with the Deregulation Bill. If the Bill is passed in its current form the new section 21A will provide that if a tenant complains in writing to the landlord regarding the condition of a dwelling house, and the landlord serves a section 21 notice, and after the landlord has served the section 21 notice the local authority serves an Improvement Notice or Hazard Awareness Notice, that section 21 notice will be invalid.

For those readers in need of a refresher, Hazard Awareness Notices, Improvement Notices and Prohibition Orders are part of the inspection and enforcement mechanism contained in the Housing Health and Safety Rating System introduced by the Housing Act 2004. A local authority has the right to inspect residential premises for hazards.

There are 29 hazards, in 6 main areas:

  • Damp and mould, excess cold, excess heat
  • Pollutants including asbestos, CO, Lead, Radiation
  • Space and security, light (is there enough?) and noise (is there too much?)
  • Hygiene, sanitation, water supply including adequacy of food preparation areas.
  • Accidents – protection from falls, slips, trips on stairs, electric shocks, burns, scalds
  • Collisions – structural hazards, poor design, explosions, collapse.

An environmental health officer, usually, but not always, following a request from a tenant, can attend a property and inspect for hazards. Each hazard identified is given a score based on the likelihood of an accident happening combined with the probable harm if it does happen. Depending on the score a hazard will be either a “category 1” hazard or a “category 2” hazard.

Category 1 hazards are the more serious.   A local authority must take enforcement action. Depending on the seriousness of the hazard the first step might be to attempt to deal with the matter informally by sending the landlord a “minded-to” letter, giving the landlord a time-limited chance to remove the hazard before taking enforcement measures. If the landlord does not comply, the local authority is likely to serve

an Improvement Notice ( this requires works to be undertaken to remove or minimise a hazard); or

a Prohibition Order ( this closes whole or part of the dwelling, or restricts the number of occupants); or

an Emergency Prohibition Order (If the hazard is thought to pose an “imminent risk of serious harm to the health and safety of any occupiers” in the property, the local authority might make an emergency prohibition order).

An Improvement Notice must set out in detail what the hazard is and set out clearly what work needs doing and a date by which the works must be started and completed. A Prohibition Order must set out what works must be done  for the order to be revoked. Failure to comply with an Improvement Notice or Prohibition Order constitutes an offence.  On conviction the fine until 12 March 2015 was capped at £5000.00. It is now unlimited. The local authority is entitled to recover the costs of enforcement, including the cost of an improvement notice.

Category 2 hazards are the less serious. The local authority has a power to take action, but not a duty. It can issue a Hazard Awareness Notice but there is no power to enforce. However if the Deregulation Bill is passed into law, a Hazard Awareness Notice served on a Landlord may be sufficient to invalidate a section 21 notice if the other conditions of the proposed section 21A are satisfied.

You can read more about the fines here.

You can follow the progress of the Deregulation Bill here.

 

Filed under: England & Wales, , , ,

More consultation over the Private Rental Sector

Due to the ever increasing demand for rental properties the Government have decided that a consultation on this area is needed. The discussion titled ‘Review of property conditions in the private rented sector’ is in its initial stages so no changes are imminent; but certain topics have been raised with a view to helping the system perform better and raise the standard of the housing industry to make sure tenants are protected and are able to live in a safe environment.

The intention of the consultation is to protect tenants from rogue landlords and agents but to try to balance this by not adversely affecting the good landlords/agents. The aim is to avoid imposing unnecessary legislation which could create more hassle, decrease much needed investment in private rented housing and result in further costs which will eventually be passed on to the tenant in the form of increased rent etc.

There are a number of topics that have been proposed as talking points for which they are inviting comments and suggestions. These include:

• Rights and responsibilities of landlords and tenants – How can it be made clearer to both sides what is required of them and what can be done if the other side has breached their obligations?
• Retaliatory evictions – How to prevent landlords from simply serving notice to evict a tenant that has notified them of necessary repairs to the property?
• Illegal evictions – Should the penalties against landlords convicted of illegal evictions be stricter?
• Safety conditions – Should smoke and carbon monoxide alarms be mandatory in all properties?
• Licensing of rented housing – Should there be mandatory licensing for all properties? Should there be voluntary accreditation schemes for Landlords so that the good landlords can be found more easily?
• Housing Health and Safety Rating System – Is more information required to make the system clearer for all parties?

This is a non-exhaustive list and so if you have any ideas of how to improve the housing market the details of where to send your proposals are detailed below and any suggestions made should be considered and discussed.

The closing date for responses is 28 March 2014 and they can be sent to PRSReview@communities.gsi.gov.uk

We will be looking to keep an eye on this and will update the blog when there are any further developments.

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

Wood burning stoves and what agents need to know.

Over the past few years wood burners and open fires have come back into vogue. Most people agree that sitting in front of a fire on a cold winter evening is something they like to do. Open fires and wood burning stoves bring there own complications.

As part of the structure of the building landlords have an obligation to keep the stove and the chimney in good repair. Landlords should also check what the requirements are of any building insurer with regards to the same.

We have recently received questions asking whether landlords need some form of certificate; and can tenants be required to clean the chimney?

With regards to any fuel burning appliance installed after October 2010 it must comply with appropriate Building Regulations. This means that any such appliance must either have been installed by a HETAS approved engineer, who can then self certificate, or specific Building Regulation consent should have been obtained. A homeowner should ensure that such certification is kept in a safe place as this may be required. Under these regulations a carbon monoxide detector will also have to be installed which the landlord will have to check is in good order. The landlord will then be responsible for the ongoing maintenance and repair of such a stove whilst it is in the property. For appliances installed before this there is no specific requirement for certification save that landlords should be satisfied that they are safe and as part of this they would be well advised to ensure that a carbon monoxide detector is present.

We would always recommend that landlords carry out regular inspections to check what, if any, repair or maintenance issues may exist. There is however currently no statutory requirement to obtain some form of annual certification.

Generally such stoves require for general safety that the chimneys are swept at least once in every twelve month period. Many tenancy agreements contain a term that the tenant should ensure that this takes place. Some commentators seem to indicate that this is an unfair contract term relying on the guidance issued by the OFT in 2005. We disagree.

In our opinion provided a landlord can show that the chimney was swept before the start of a tenancy it is not unreasonable to place an obligation upon a tenant to ensure that the chimney is swept at regular intervals provided there is no obligation for them to return the property with the chimney in a better state than it was given to them. This can only apply to having the chimney swept and any maintenance which may be required from time to time would be the landlord’s responsibility. We are not aware of any specific challenges made by tenants to such terms and if anyone is would welcome hearing from them.

To summarise our view is that a well advised landlord will check if the installation was after October 2010 that they have a copy of the certificate. They will prior to any tenancy have the chimney swept (or make sure they have evidence that this happened) and also make sure that in any pre-tenancy inspection they check no repair or maintenance issues arise. We would always suggest that if in doubt a reputable professional is employed to undertake a check and the prudent landlord will ensure that their property has smoke and carbon monoxide detectors fitted.

Filed under: England & Wales, , , , ,

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, , , , ,

Fire Safety revisited

We have had a few queries regarding the Fire Safety (Protection of Tenants) Bill on which we have previously blogged, and so here is our update: the Bill failed to complete its passage through Parliament before the end of the session. This means the Bill will make no further progress and will not become law.

To recap, this was “a bill to require landlords to provide smoke alarms in rented accommodation; and connected purposes”. All landlords were to be required to install a mains operated battery backed smoke alarm before the tenancy agreement is signed.

The tenant would have been required to test the smoke alarm at least once a month and notify the landlord of any defects, who would then be required to carry out the repairs. There was to be a criminal penalty of up to 2 years in prison and/or a fine of up to £5000.00.

Filed under: England & Wales, , , ,

A rise in dangerous homes?

A BBC report over the weekend cast a gloomy and critical eye over the private rental sector, based on a report from the Chartered Institute of Environmental Health (CIEH). The report says that “One million rented homes in England ‘are dangerous’”, further adding that the number will rise because of changes in housing benefit and legal aid.

However, the government has abandoned any plans for a national landlord register, and has believed that too much red tape will be worse, not better for tenants. (See Grant Shapps’ comments).

Legislative protection of the health and safety of tenants exists in plenty. In addition to the landlords repairing obligations under the LTA 1985, any agent will be aware of the powers of local authorities to enforce standards under the HHSRS: for example there is no legal obligation on a landlord to take away polystyrene tiles or to put a banister on stairs – but an environmental health officer and local authority has the power to insist this is done. Such powers exist in respect of owner-occupiers too.

Further we have had agents report to us that despite the fact that it is compulsory for EPC ratings to be included in written information given to prospective tenants, some local authorities have advised that they are not acting where this is not done.

To predict a future of rogue landlords rampaging over the rights of tenants living in derelict properties is to ignore the hard work and the substantial self-regulation that landlord groups, bodies like NFOPP and NALS and many landlords and agents themselves, as well as local authorities, put in to make sure that people get decent affordable housing. The CIEH itself reports on how local authority initiatives are helping to raise standards in housing.

The large number of the queries we get to our helpline service regarding health and safety and repairing obligations is testimony to the fact that agents and landlords do want to know their obligations and seek to uphold them.

Painsmith has blogged extensively on disrepair, the HHSRS, EPCs and the private rental sector.

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

HHSRS Before the Land Tribunal

Hanley v Tameside Metropolitan Borough Council concerned an appeal from the Residential Property Tribunal (RPT) against the service of a Prohibition Order. Bolton Metropolitan Borough Council v Patel concerned an appeal from the RPT on Emergency Remedial Action.

The Housing Health and Safety Rating System (HHSRS) was introduced by the Housing Act 2004 and represents one of the more far reaching and significant parts of the act. Under its provisions Environmental Health Officers (EHOs) have powers to inspect properties, identify hazards and after scoring the hazards placing them in either one of two categories, category 1 hazards being the most serious hazards and usually attracting more severe enforcement methods. The EHO can then issue the landlord with orders for remedial action. Enforcement actions range from Hazard Awareness Notices which are not enforced to Prohibition Orders, ordering the Premises to be vacated until the identified hazards have been rectified.

The Prohibition Order in Hanley was made by the council as a result of a water ingress into the house he was letting to four people. An appeal to the RPT was refused but it allowed a further appeal to the Lands Tribunal on the basis that there was an arguable point of law. The landlord argued that as the building conformed to the Building Regulations or could be easily made to comply they could not be hazards for the purposes of the HHSRS.

There were two issues the Lands Tribunal had to deal with. Firstly whether the HHSRS would take precedence over the Building Regulations. The RPT held that if the hazard was identified under the provisions of the Housing Act, compliance with the building regulations was not a material consideration.

The Lands Tribunal found that this interpretation was an error of law. It must be a material consideration if an alleged hazard conforms with the building regulations. Furthermore the tribunal found that there was no conflict between the two legislative provisions.

However the Prohibition Order was not set aside as the erroneous reasoning did not form part of the reasoning of the RPT.

Bolton considered Emergency Remedial action, another of the enforcement actions available to EHO’s. The hazards identified were failure of the boiler and consequential lack of heating, hot water and exposed electrical wiring. The RPT found that it was correct that emergency remedial action was ordered on the basis of the exposed electrical wiring but not for the repair of the boiler. The argument raised before the LT was whether the RPT had properly concluded there was not a ‘serious risk’ of ‘imminent harm’ as required by the Act. The landlord argued that the interpretation of ‘imminent’ should be that of 28 days as opposed to 5 days which the RPT had interpreted after which the next possible action could be taken, namely an improvement notice. The LT did not accept this as an improvement notice has an additional period in which an appeal could be lodged and furthermore the act was not drafted to link emergency remedial action with improvement notices. The appeal was therefore dismissed by the LT.

The LT however made an important observation about the HHSRS system stating, in relation to the method of hazard assessment

The great danger of a numerical score produced in this way is that it creates the impression of methodological accuracy, whereas the truth may be that it is the product of no more than a series of value judgements based on little understood statistics of questionable validity

The statistics that the hazard calculation tables are based on have also been criticised. The statistics embody a ‘notional occupier’ test, as opposed to testing the hazard against the actual occupants. The test for Excess Cold is based on a ‘bare statistic’ of total winter deaths for over 65s.

A further concern lies in the ability of EHO’s to decide whether the likelihood of a hazard occurring should be increased. It is this subjective element that can result in extra-ordinary results as the EHO’s decision acts as a multiplier. For example in the present case the the EHO had radically increased the risk of harm by excess cold assessing that there was a “1 in 31.6 that an occupier of the house would within the next 12 months die or suffer some other form of extreme harm…” The court noted that this was a surprising conclusion.

From these decisions Landlords and their agents should be mindful that although properties may be compliant with the Building Regulations, and compliance may be a positive sign that they are HHSRS compliant, there may be divergence. Furthermore as the HHSRS system currently stands EHO’s have a wider discretion than may initially be thought. Therefore to ensure compliance hazards should be interpreted conservatively.

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

EPCs and the HHSRS

We have been surprised to be told of a few cases where Local Housing Authorities are serving improvement notices under the Housing Health and Safety Rating System on landlords because they have a very poor Energy Performance Certificate rating. Presumably this is on the basis if the ‘excess cold’ hazard profile in the HHSRS. However, an EPC is a measure of the cost of heating and lighting a property and says nothing about how warm or cold that property can be. Therefore it is hard to see on what basis action is being taken.

If anyone would care to give some more information we would be grateful!

Filed under: Uncategorized, , ,

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