Legal Updates


LEGAL UPDATES

The Tenant Fees Act 2019

The Tenant Fees Act sets out the Government's approach to banning letting fees paid by Tenants in the private rented sector and capping tenancy deposits in England, from 1st June 2019.

The aim of the Act is to reduce the costs that Tenants can face at the outset, and throughout, a tenancy, and is part of a wider package of measures aimed at rebalancing the relationship between Tenants and Landlords to deliver a fairer, good quality and more affordable private rented sector.

Tenants will be able to see, at a glance, what a given property will cost them in the advertised rent with no hidden costs.

Client Money Protection Legislation 2019

From 1st April 2019 Letting Agents in England are required by law to belong to an approved Client Money Protection Scheme to protect Landlord and Tenant money.  

Client Money Protection is designed to protect client money held by Property Agents.  It offers financial protection for Landlords and Tenants that their money is secure whilst being held by an Agent, and also helps to continually support and raise standards within the property industry.  In the event that monies are misappropriated by an Agent, in the course of running their business, client money protection helps to return monies to the affected parties (Landlord and/or Tenants).


Homes (Fitness for Human Habitation) Act 2019

The Act came into force on 20 March 2019.  It is designed to ensure that all rented accommodation is fit for human habitation and to strengthen Tenants' means of redress against the majority of Landlords who do not fulfil their legal obligations to keep their properties safe.  

There are no new obligations for Landlords under this Act; the legislation requires Landlords to ensure that they are meeting their existing responsibilities with regards to property standards and safety.

Under the Act, the Landlord and Tenant Act 1985 is amended to require all Landlords (private and social) to ensure that their properties, including any common parts of the building, are fit for human habitation at the beginning of the tenancy and throughout.  The Act states that there is an implied agreement between the Tenant and Landlord at the beginning of the tenancy that the property will be fit for human habitation

Landlords will need to make sure that their property is free of hazards which are so serious that the dwelling is not reasonably suitable for occupation in that condition.  Most Landlords take their responsibility seriously and do this already

Where a Landlord fails to do so, the Tenant has the right to take action in the courts for breach of contract on the grounds that the property is unfit for human habitation.  The remedies available to the Tenant are an order by the court requiring the Landlord to take action to reduce or remove the hazard, and/or damages to compensate them for having to live in a property which was not fit for human habitation.

Deregulation Act 2015

Following the changes and impact of the Deregulation Act 2015, whilst each case will vary, it brings in changes to the rules and requirements for serving Section 21 Notices and these are by far the biggest changes since the law was first passed.  

Section 21 of the Housing Act 1988 prescribes a system for repossession of a property let on an Assured Shorthold Tenancy in situations where the Tenant has not done anything wrong.  This can only happen at the end of the fixed term or when the tenancy is periodic and is therefore particularly important to private Landlords.

Since 1st October 2015 we introduced a Tenant Checklist, to be signed by the Tenant at the start of the tenancy as proof of receipt of the required documents, to ensure compliance with the new rules.

Minimum Energy Efficiency Standard (MEES) 2018

The Minimum Energy Efficiency Standard which came into force in England and Wales on 1st April 2018, applies to private rented residential and non-domestic property and is aimed at encouraging Landlords and Property Owners to improve the energy efficiency of their properties by a restriction on the granting and continuation of existing tenancies where the property has an Energy Performance Certificate Rating of F and G.  

The Minimum Energy Efficiency Standard Rating is E and above.  An Energy Performance Certificate (EPC) sets out the energy efficiency rating of a property with recommendations on improving its energy efficiency.  Any property which as been marketed or let since 2008 requires an EPC which lasts for 10 years with certain exceptions.

From 1st April 2018, Landlords' properties which fall into the above categories, may not grant a tenancy to new or existing Tenants with an EPC rating F and G and from 1st April 2020, Landlords will not be able to continue letting the property.  Where the Landlord wishes to continue letting the property which does not meet the standard, he/she will need to ensure that energy efficiency improvements are made to meet the minimum E rating.

These requirements will apply to all private rented properties in England and Wales, even where there has been no change in tenancy arrangements from 1st April 2020 for domestic properties and from 1st April 2023 for non-domestic properties.

The Smoke & Carbon Monoxide Alarm (England) Regulations 2015

From 1st October 2015 the regulations require Landlords to ensure at least one smoke alarm is installed on every storey of their rental property which is used as living accommodation and a carbon monoxide alarm is in any room used as living accommodation where solid fuel is used (ie rooms containing an open fire, log burning stove etc), however as gas appliances can emit carbon monoxide, it is recommended that Landlords ensure that working carbon monoxide alarms are installed in rooms with these.

The Landlord (or the Agents acting on their behalf) must ensure all alarms are in working order at the start of each new tenancy.

After the test on the first day of the tenancy, Tenants should take responsibility for their own safety and test all alarms regularly to make sure they are in working order.  Testing monthly is generally considered an appropriate frequency for alarms.

If Tenants find that a smoke alarm is not in working order during the tenancy, they are advised to firstly replace the battery and if it is still not working, notify the Landlord (or the Agents acting on their behalf) immediately to arrange the replacement of the alarm itself.  If Tenants find that a carbon monoxide alarm is not in working order during the tenancy, they should notify the Landlord (or the Agents acting on their behalf) immediately to arrange a replacement alarm.

           

Right to Rent Regulations, under the 2014 Immigration Act

As of 1st February 2016 all Landlords (or the Agents acting on their behalf) will be required to check the immigration status of all potential Tenants, to ensure they have the right to live in the UK, prior to them taking up residence in a privately rented property.

 As part of these checks Landlords, or their Managing Agents, will be required to ensure the documentation provided by prospective Tenants (ie passports, visas etc) is genuine and that the person renting the property matches the person listed on the document. They’ll also be required to take a copy of the documents and store them in a secure manner for at least 12 months after the tenancy ends. 

Choice Lettings have the use of a Right to Rent online check which helps to comply with the Government’s Legislation.  It involves answering a series of simple questions, which then prompts us to upload the Tenants’ documents.  The documents are checked and the results are returned to us and a copy of the documentation will be stored securely. A final report will be issued, which can be used as proof that you have complied with the legislation and carried out the appropriate checks.  Please refer to the Home Office website for the most current guidance at: https://www.gov.uk/government/organisations/home-office.

L8 Approved Code of Practice (ACOP) – Legionella bacteria

This was revised and republished in November 2013 and retained the guidance on the requirements of HSWA and COSHH for employers AND those with responsibilities for the control of premises including landlords (L8 ACOP, paragraphs 1 and 2).  It applies to the control of Legionella bacteria in any undertaking involving a work activity AND applies to premises controlled in connection with a trade, business or other undertaking where water is used or stored and there is a reasonably foreseeable risk of exposure to Legionella bacteria (L8 ACOP, paragraph 22).

Section 3(2) of the Health and Safety at Work Act 1974 (HSWA) makes provision for relevant health and safety legislation to apply to landlords to ensure a duty of care is shown to their tenants’ with regard to their health and safety.  The general duties require under section 3(2) that "It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety".   Landlords, under Section 53 of HSWA are regarded as being self-employed and tenants fall into the class of “other persons (not being his employees)”.  If you rent out a property, you have legal responsibilities to ensure you conduct your undertaking in such a way that your tenant(s) are not exposed to health and safety risks.


Legionella & Legionnaires’ disease – Landlords’ responsibilities

Legionnaires' disease is a potentially fatal form of pneumonia caused by the inhalation of small droplets of contaminated water containing Legionella. All man-made hot and cold water systems are likely to provide an environment where Legionella can grow. Where conditions are favourable (ie suitable growth temperature range; water droplets (aerosols) produced and dispersed; water stored and/or recirculated; some 'food' for the organism to grow such as rust, sludge, scale, biofilm etc) then the bacteria may multiply thus increasing the risk of exposure.  It is a simple fact that the organism will colonise both large and small systems so both require risks to be managed effectively.

The law is clear that if you are a landlord and rent out your property (or even a room within your own home) then you have legal responsibilities to ensure the health and safety of your tenant by keeping the property safe and free from health hazards.

The Control of Substances Hazardous to Health Regulations 2002(COSHH) provides a framework of actions to control the risk from a range of hazardous substances, including biological agents (eg Legionella) - to identify and assess the risk, and implement any necessary measures to control any risk. 

The practical and proportionate application of health and safety law to landlords of domestic rental properties is that whilst there is a duty to assess the risk from exposure to Legionella to ensure the safety of their tenants, this does not require an in-depth, detailed assessment.  The risks from hot and cold water systems in most residential settings are generally considered to be low owing to regular water usage and turnover. A typical ‘low risk’ example may be found in a small building (eg housing unit) with small domestic-type water systems, where daily water usage is inevitable and sufficient to turn over the entire system; where cold water is directly from a wholesome mains supply (no stored water tanks); where hot water is fed from instantaneous heaters or low volume water heaters (supplying outlets at 50 °C); and where the only outlets are toilets and wash hand basins. 

A simple assessment may show that there are no real risks and are being properly managed and no further action is needed.  It is important to review the assessment in case anything changes in the system.  Implementing simple, proportionate and appropriate control measures will ensure the risk remains low.  For most domestic hot and cold water systems, temperature is the most reliable way of ensuring the risk of exposure to Legionella bacteria is minimised ie keep the hot water hot, cold water cold and keep it moving.  Other simple control measures to help control the risk of exposure to Legionella include:-

Flushing out the system prior to letting the property

Avoiding debris getting into the system (eg ensure the cold water tanks, where fitted, have a tight fitting lid)

Setting control parameters (eg setting the temperature of the hot water cylinder (calorifier) to ensure water is stored above 50°C)

Make sure any redundant pipework identified is removed.  The risk is further lowered where instantaneous water heaters (for example combi boilers and electric showers) are installed because there is no water storage.  HSE has published guidance for landlords, free to download from HSE’s website: http://www.hse.gov.uk/legionnaires/legionella-landlords-responsibilities.htm