The Responsibilities and Liabilities of the Landlord/Letting agent
https://www.stockton.gov.uk/media/2771/chapter-2-landlord-responsibilities.pdf1 Pre-tenancy
2.1 Landlords’
Responsibilities for
Repair and Maintenance
2.2 Implied Terms in
Tenancy Agreements
2.3 Common Law Implied
Terms
2.3.1 The Right of a Tenant to
Quiet Enjoyment of a Rented
Property without Intrusion
or Disturbance by a Landlord
In addition to any repair responsibilities explicitly set out in the tenancy
agreement, common law and statute will imply terms to the agreement
between landlord and tenant. These terms form part of the contract, even
though they have not been specifically agreed between the two parties.
Specific obligations to repair are set out in detail in the sections below. As
a general rule the building itself and the immediate surroundings should
be able to withstand normal weather conditions, and normal use by tenants
and their visitors.
The property should be in a reasonable state of repair both internally
and externally and fit for human habitation at the start of the tenancy.
There should be no dampness, either in the form of rising or penetrating
damp, from the outside. Condensation may be as a result of the
tenant’s behaviour but it may also have implications for the landlord
if the ventilation is inadequate or some structural problem is causing
it. An investigation of the cause will be needed to be able to decide
responsibility.
Statutory and common law requires that there should be no unacceptable
level of risk to the health or safety of the occupiers or their visitors.
Remember that if the tenant or visitors have an accident or suffer injury
due to the poor condition of the property (for example a fall caused by a
broken handrail or respiratory diseases caused by damp conditions), the
landlord may be liable to them for damages for personal injury.
(bronchial asthma, lung disease and dust allergies)
Implied terms are those that are considered to be part of a legal lease,
tenancy agreement and/or licence even though they are not actually
written down in that document. Implied terms can arise from common law
and/or statute.
Note: any attempts to evade statutory or common law rights and
responsibilities by way of any standard term in the tenancy agreement,
may result in the relevant term being found void under the Unfair Terms in
Consumer Contracts Regulations 1999.
Examples might include a clause
requiring rent to be paid without set-off (as this would be an attempt to
exclude the tenant’s common law right to set off against the rent any debt
owed to the tenant by the landlord) or a clause term requiring the tenant
to be responsible for repairs to the gas appliances (as this is the landlord’s
statutory responsibility).
The main terms implied by common law are detailed below:
This right is implied into all tenancies which entitles the tenant to live
in the property without disturbance from the landlord or people acting
on the landlord’s behalf. Generally a landlord does not have the right to
turn up unannounced to check on a property or tenant. It must be agreed
mutually beforehand, where the landlord wishes to enter for a specific
purpose, such as repairing a window. It has been held that breach of the
repairing covenants can also be considered to be breach of the covenant
of quiet enjoyment. A right of quiet enjoyment is often written into the
tenancy agreement because then the landlord can limit or widen the
scope of the implied obligation, or even make the covenant for quiet
enjoyment conditional on the tenant complying with their own obligations.
Where there is a covenant for quiet enjoyment written into the tenancy
agreement, the tenant will be entitled to have the landlord comply with
that covenant.
2. The Responsibilities and Liabilities of the Landlord/Letting Agent
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2.3.2 Tenant must use the Property in a Tenant-like Manner
2.3.3 The Tenant shall not permit Waste
2.3.4 Fair Wear and Tear
2.3.5 The Tenant must not use the Rent to pay for Repairs, except in very Limited Circumstances
2.4 Statutory Implied Terms
2.4.1 Landlord and Tenant Act 1985
2.4.2 Access to Property This has been defined in case law as ‘to do the little jobs about the place which a reasonable tenant would do’ such as unblocking sinks when blocked by the tenant’s waste, keeping toilets and drains clear, regular cleaning including windows, putting refuse out for collection and gardening if applicable. The tenant has the responsibility to ensure the property is not damaged
deliberately and is kept clean and free from rubbish during the course of the tenancy.
The tenant should leave the property in the same condition as when they took possession, fair wear and tear excepted.
Repairs must be reported to the landlord/agent.
Using rent for any other reason could result in eviction from the property.
Section 11 of the Landlord and Tenant Act 1985 implies a term into tenancy
agreements for less than seven years that the landlord shall keep in repair:
• the structure and exterior of the dwelling
• the installations for the supply of water, gas, electricity and
sanitation
• the installations for the supply of space heating and water
heating and
• the communal areas and installations associated with the dwelling (section 11 as amended by section 116 of the Housing Act 1988), where these are controlled by the landlord.
The Act also provides that the standard of repair necessary will vary depending on the ‘age, character, and prospective life of the property and its location’.
Section 11 – sub-section (6) implies a term into the tenancy agreement that landlords with section 11 repairing responsibilities (or people authorised by them) have the right to access the property for the purpose of viewing its condition and state of repair. Access can only be at reasonable times of the day and after giving the tenant not less than 24 hours’ notice in writing. This section does not extend to actually carrying out the repairs. The right to enter for the repair would be an implied term, as the law says the landlord must do the repair, it is implied he or she has the right to enter to do it. However, the right to enter to do repairs (subject to notice being given) is generally included in tenancy agreements and if the tenant refuses to allow the landlord access to carry out the repairs,
the tenant will not be in a position to complain about the property or to claim for damages for disrepair or for personal injury caused by the disrepair.
Indeed if the tenant’s failure to allow the landlord access to do the works results in further deterioration or damage to the property, the tenant may be liable to the landlord (entitling the landlord, for example, to deduct the additional costs incurred from the damage deposit).
Note that although section 11(6) gives the landlord the right to enter the
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2.4.3 Breach of Repair Obligations
property (after having given notice), this does not mean that the landlord
is entitled to enter the property at that time, irrespective of whether the
tenant asks the landlord not to. However, if the particular appointment
time is inconvenient, the tenant will be expected to consent to an
appointment at another time.
If the tenant refuses to allow the landlord access at all, the tenant will be
in breach of their tenancy agreement, because the right of access is an
implied term of the agreement). In some circumstances (for example if the
property is clearly in disrepair) this may entitle the landlord to apply for an
order for possession.
Generally, landlords should be wary about entering the property when the
tenant is not there. Where a tenant has given permission, but has advised
they will not be at the property themselves, it is recommended that
landlords/agents are best accompanied by a witness.
The landlord will be able to pass on the cost of works or repairs to the
tenant if work is needed because of the tenant’s breach of their obligations
under the tenancy.
Action can be taken by the tenant in the County Court for breaches of the
landlord’s repairing obligation. This is a civil action and tenants can claim
compensation for damage and inconvenience resulting from the breach.
The landlord should receive notice of this in advance of any claim being
brought, as tenants are now obliged to comply with the ‘Pre-action Protocol
for Housing Disrepair’. This protocol provides that tenants must inform
their landlord in writing (an ‘early notification letter’ followed by a ‘letter
of claim’) of all relevant matters before issuing legal proceedings. The
protocol gives full details of the information to be provided and specimen
letters.
If the tenant does not comply with the protocol, the landlord can
ask the court to stay the claim until the provisions of the protocol have
been complied with. A copy of the protocol can be downloaded from HM
Courts Service website at www.hmcourts-service.gov.uk
.
Section 17 of the Landlord and Tenant Act 1985 requires specific
performance (saying the landlord will have to do the repair) where there
has been a breach, i.e. the payment of compensation may not be sufficient
remedy.
This means that the County Court can make an order requiring the landlord
to fulfil the express or implied repairing terms of the tenancy agreement.
The County Court can make an injunction requiring the landlord to do
repair work which may or may not be within the terms of the contract. If
the landlord fails to carry out the works required by the court order, the
landlord, or his agent, can in very extreme situations be committed to
prison for contempt.
The County Court can alternatively direct that the
repairs be undertaken by, or on behalf of, the tenant at the landlord’s
expense.
Damages (compensation) can still be claimed even if the works have been
carried out by the time the case reaches court.
In practice it is rare for these extreme measures to be used. However, it is
important to be aware that these penalties exist, and every care should be
made to respond promptly to repairing obligations when they arise. It is,
after all, protecting any financial investment. If the property is properly
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2.4.4 Defective Premises Act
1972
2.4.5 Occupiers’ Duty of Care
2.5 Housing Health and Safety Rating System
insured
some work may be covered by the insurance policy.
Section 4 of the Defective Premises Act 1972 places a duty of care on the
landlord in relation to any person who might be affected by a defect, ‘to
take such care as is reasonable in all the circumstances to see that they
are reasonably safe from personal injury or from damage to their property
caused by a relevant defect’.
This is civil redress. A defect is relevant if the landlord knew about it or
should have known about it - the fact that a defect has not been reported
or there has been a failure to inspect (e.g. rotten floorboards or joists) does
not remove liability. It is for this reason that it is important that landlords
(or their agents) carry out regular checks on the property.
In this case the premises include the whole of the letting - i.e. including
gardens, patios, walls, etc - and can be applied to the communal areas of
estates or multi-occupancy buildings, including lifts, rubbish chutes, stairs
and corridors. Section 4 provides tenants or other affected persons with the
right to seek compensation for personal injury or damage to property.
Section 2 of the Occupiers’ Liability Act 1957 provides that the occupier of
a property has a duty of care to all visitors who come onto their premises.
This applies to landlords where they are the legal occupier of some parts
of their rented stock, e.g. shared-use areas such as lifts, staircases and
entrance lobbies – in some cases even grounds and car parks.
The duty means taking such care as would be reasonable in all
circumstances to see that the visitor is reasonably safe in using the
premises for its purpose. The landlord is liable for any injury caused to
a visitor as a result of defects in the part of the building occupied by the
landlord.
The Law and Landlords’ Obligations
The Housing Act 2004 places a statutory duty on local authorities to
identify hazards and to assess tenants’ risks to health and safety. Local
authorities are required to use a system called the Housing, Health and
Safety Rating System (HHSRS) to identify and assess risks. Section 3(1) of
the Act states
:
‘A local housing authority must keep the housing conditions in their area
under review with a view to identifying any action that may need to be
taken by them under any of the provisions mentioned in sub-section (2).’
Depending on the seriousness of risk, local authorities assess hazards as
either category 1 or category 2 hazards. Section 5 describes the duty on
the local authority to take enforcement action where a category 1 hazard
exists
In practice, how local authorities discharge their duty under section 3(1)
varies. In some cases local authorities are proactive in carrying out an
assessment of the private rented sector stock in their areas but others
are now only able to offer a reactive service, responding to requests for
assistance from both tenants and landlords.
Although not a general legal obligation, it is useful for landlords to be able
to identify and risk-assess health and safety hazards at their properties and
take remedial action where necessary. Most local authorities are keen to
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2.5.1 Hazards
2.5.2 Risk Assessment
work with landlord groups in their area to make sure landlords are aware
of the local authority’s responsibilities, powers and duties under the Act
and a prudent landlord will be proactive in seeking to ensure that their
properties are of a standard that does not attract the interest of the local
housing authority.
The HHSRS lists 29 hazards that landlords need to be aware of.
Physiological:
• damp and mould growth
• excess cold
• excess heat
• asbestos and manufactured mineral fibre
• biocides (e.g. damp and timber treatment products)
• carbon monoxide and fuel combustion products
• lead
• radiation
• uncombusted fuel gas
• volatile organic compounds.
Psychological:
• crowding and space
• entry by intruders
• lighting
• noise
Infection:
• domestic hygiene, pests and refuse
• food safety
• personal hygiene, sanitation and drainage
• water supply for domestic purpose
Accidents:
• falls associated with baths
• falling on level surfaces
• falling associated with stairs and steps
• falling between levels
• electrical hazards
• fire
• flames and hot surfaces
• collision and entrapment
• explosions
• position and operability of amenities
• structural collapse and failing elements
The HHSRS is a technical system and is best used by persons with a
technical health and safety or building construction background.
The HHSRS is available at:
www.communities.gov.uk/documents/housing/pdf/142631.pdf.
There are a number of landlord guides to the HHSRS available through the
internet that provide an understanding of HHSRS without going into its full
details.
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2.5.3 Vulnerable Groups
One such guide provided by the Government, is entitled Housing Health
and Safety Rating System – Guidance for Landlords and Property-related
Professionals available at www.communities.gov.uk/publications/housing/
housinghealth
In practice it is very challenging for landlords to acquire the skills necessary
to use the HHSRS to accurately risk-assess hazards as category 1 or 2.
To help landlords to identify potential category 1 hazards and prioritise
them for action a simple guide to risk-assessing hazards is provided below:
The risk from a hazard is a combination of:
• the likelihood of a hazard, over a 12-month period, causing
harm sufficient to require some medical attention and
• the potential seriousness of harm from that hazard, should
harm occur.
A risk assessment of a hazard that indicates high likelihood of harm,
and high potential seriousness of that harm, means that the hazard may
potentially be high risk and therefore in need of remedial action to reduce
the risk to a more acceptable level.
Step 1 Familiarise yourself with the 29 HHSRS hazards, especially the most
commonly occurring.
Step 2 Ask yourself whether the likelihood of harm occurring over a
12-month period from an identified hazard is high.
Step 3 Ask yourself whether the potential seriousness of that harm would
be high.
If the answers to steps 2 and 3 are YES, then the hazard is a high-risk
hazard.
Example
Assessing the risk of falling down a stair.
If a stair is long, steep, in disrepair, has a loose worn covering, has varying
sizes of treads and risers, does not have a handrail or adequate artificial
lighting along its length, then the likelihood over a 12-month period of
someone falling will be high.
If at the bottom of the stair there is a hard floor surface, a wall mounted
radiator with sharp corners and a non-safety glazed door, then the
seriousness of a fall is likely to be high.
The combination of high likelihood of an accident and high potential
seriousness of harm means that the risk of the hazard of falling down the
stair is high, liable to be a category 1 hazard and in need of high priority
remedial action.
Young and elderly persons are more at risk from the following hazards
in particular than young able bodied adults: cold, falls, fire, hot surfaces,
dampness, food safety and entry by intruders.
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2.5.4 Property Inspection Form
2.5.5 HHSRS Enforcement
Landlords letting properties to elderly persons or families with young
children should be particularly mindful of these hazards when carrying out
risk assessments and should provide additional protective means where
necessary.
To assist landlords to identify and risk-assess hazards on site and record
any necessary remedial works, a property inspection form is provided in
Appendix 3 of this handbook.
Although not a legal requirement it is recommended that an inspection
form is completed for each property and a copy kept on file.
In the event that a property is inspected by a housing standards
enforcement officer, then providing the officer with a copy of the property
inspection form will provide a strong indication that the landlord takes
their health and safety responsibilities seriously.
The form provides, room by room, a list of potential defects and
deficiencies that can give rise to hazards.
The seriousness of the defects and deficiencies can be scored as:
1. not satisfactory
2. defective
3. seriously defective
Before inspecting a property, landlords need to copy the appropriate
number of pages of the inspection form that will be needed.
For example if the property has two bathrooms then two copies of the page
covering bathrooms need to be printed off. It is a good idea to carry spares.
There is a Summary of Property Inspection at the end of the form to
provide a summary of any hazards identified as needing remedial action.
The remedial action can be prioritised as low, medium or high.
The final page of the form is to complete as an action plan with timescales.
Local authorities have statutory duties and powers to take enforcement
action to deal with properties containing hazards identified under the
HHSRS. Under the HHSRS local authorities have a duty to take appropriate
enforcement action in relation to category 1 hazards, and discretion to act
in relation to category 2 hazards.
If a hazard presents a severe threat to health or safety it is known as a
category 1 hazard.
If a local housing authority considers that a category 1 hazard exists on any
residential premises, they must take the appropriate enforcement action in
relation to the hazard.
Less severe threats to health and safety are known as category 2 hazards
and a local authority may take appropriate enforcement action to reduce
the hazard to an acceptable level. The circumstances in which local
authorities will take action over category 2 hazards will vary and will
depend on the individual local authority’s enforcement policy.
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2.6 Decent Homes Standard
(applicable to England only)
2.7 Gas Safety
2.7.1 Gas Safety (Installation
and Use) Regulations 1998
Although statutory action is mandatory for category 1 hazards and
discretionary for category 2 hazards, the choice of what course of action is
appropriate is also a matter for the local authority and it will depend on the
individual local authority’s enforcement policy.
The authority must, however, take into account the statutory enforcement
guidance and the options available include:
• serving an improvement notice requiring remedial works
• making a prohibition order, which closes the whole or part of a
dwelling or restricts the number of permitted occupants
• suspending the above types of notice for a period of time
• taking emergency action itself
• serving a hazard awareness notice, which merely advises that a
hazard exists, but does not demand works are carried out
• demolition
• designating a clearance area.
Additional information can be obtained from the CLG, in particular the two
guidance documents:
• Housing Health and Safety Rating System: - Guidance for
Landlords and Property Related Professionals
• Housing Health and Safety Rating System: - Operating Guidance
The decent homes standard was a measure of general housing conditions
introduced by the Government in 2000. Although private landlords were
not directly required to take any action to bring their properties up to this
standard, the Government set targets for local authorities. However, from
April 2008, all other sets of indicators, including Best Value Performance
Indicators and Performance Assessment Framework Indicators, have been
abolished.
It is vital that landlords clearly understand their responsibilities and
obligations in relation to gas supply and appliances and the duties and
responsibilities placed on them by the gas safety regulations.
Obligations between landlords and agents need to be specific in relation to
the gas safety regulations and neither party can seek to evade or exclude
themselves from those obligations. Any clause in the tenancy agreement
which attempts to evade the regulations will be invalid. A breach of the
regulations is a criminal offence, enforced by the Health & Safety Executive.
The Gas Safety (Installation and Use) Regulations 1998 make it mandatory
that gas appliances are maintained in a safe condition at all times.
Landlords are required by the regulations to ensure that all gas appliances
are adequately maintained and that an annual safety check is carried out by
a registered tradesperson.
From March 2009 the Gas Safe Register has replaced CORGI gas registration
in Great Britain and is now the official industry stamp for gas safety. For
further information visit www.gassaferegister.co.uk.
All gas installers should carry identification cards which will state the type
of work they are authorised to carry out. For further information about
registered gas installers and to locate a service that is local, see the Gas
Safe Register website at www.gassaferegister.co.uk. Once the inspection
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2.7.2 Exceptions to the
Regulations
has been carried out, the installer will provide a gas safety record.
A gas safety record must be provided to tenants of properties which
contain gas appliances when they first move in, and annually thereafter.
Failure to do this is a criminal offence.
Any necessary repair or remedial work identified should be carried out
straightaway by the landlord who cannot place responsibility for this onto
the tenant. If the need for any work is caused by the tenant’s behaviour,
then the tenant can be charged for the cost of the repair work afterwards.
For further information about responsibilities and obligations, contact the
Health & Safety Executive (HSE) for advice. Additional information and
details of the local HSE office can be obtained from the HSE website at
www.hse.gov.uk.
It is very important that the gas regulations are complied with and all
necessary repairs carried out as soon as possible. Defective gas appliances
are very dangerous and some tenants have died as a result. Culpable
landlords could be subject to legal action.
A landlord must:
• have gas appliances provided by them checked for safety by a
registered gas installer within 12 months of their installation
and then ensure further checks at least once every 12 months
after that
• ensure a gas safety check has been carried out on each
appliance and flue every 12 months, except where the
appliance was installed less than 12 months ago. Gas pipe
work should also be inspected to ensure it is not leaking. The
registered gas installer must take action to leave the appliance
safe, if it fails a safety check. This could be remedial action,
disconnection and/or a warning notice attached
• give a copy of the gas safety record to any new tenant when
they move in or to an existing tenant(s) within 28 days of the
check
• keep a record of the gas safety check made for each appliance
for two years
• ensure that gas appliances, fittings, and flues are maintained
in a safe condition.
The regulations do not apply to gas appliances which are owned by the
tenant.
The regulations do not apply to leases for terms of more than seven unless
the landlord has a break clause which entitles the landlord to end the lease
during the first seven years.
The regulations allow a defence for some specified regulations where
a person can show that they took all reasonable steps to prevent the
contravention of the regulations.
Portable or mobile gas appliances supplied from a cylinder must be
included in maintenance and the annual check; however they are excluded
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2.7.3 Room-sealed Appliances
2.7.4 Indications that an
Appliance is Faulty or
Dangerous
2.7.5 Tenants’ Duties
2.8 Electrical Safety and
Electrical Goods
2.8.1 Landlords’ Duties and
Responsibilities
from other parts of the regulations.
The regulations require that:
• a gas appliance installed in a bathroom or a shower room
must be a room-sealed appliance (i.e. sealed from the room in
which it is located and obtaining the air for combustion from
the open air outside the building, discharging the products of
combustion direct into the open air)
• a gas fire, other gas space-heater or a gas water-heater of 14
kilowatt heat output or less in a room used or intended to be
used as sleeping accommodation must either:
- be a room-sealed appliance or
- incorporate a safety control designed to shut down the
appliance before there is a build-up of a dangerous
quantity of the products of combustion in the room
concerned.
Danger signs to look for are:
• stains, soot or discolouring around a gas appliance indicating
that the flue or chimney is blocked, in which case carbon
monoxide can build up in the room
• a yellow or orange flame on a gas fire or water heater
• The most effective indication of a combustion problem would
be the activation of a properly installed carbon monoxide
detector.
Tenants also have responsibilities imposed upon them by the Gas Safety
(Installation and Use) Regulations 1998.
They must report any defect that they become aware of and must not use
an appliance that is not safe. Tenants should be informed of this in writing
and a clause explaining their duties should be included in their tenancy
agreement: this would include reporting any defect and not using an
appliance that is not safe.
Again, landlords should have a clear understanding of their responsibilities
in relation to electrical installations and appliances and the duties and
responsibilities placed on a landlord by the following regulations:
• Landlord and Tenant Act 1985
• Consumer Protection Act 1987
• Electrical Equipment (Safety) Regulations 1994
• Building Regulations 2000
Legislation places obligations on landlords to ensure that all electrical
appliances supplied by the landlord are safe at the date of supply.
Landlords need to ensure that the electrical installation and all electrical
appliances are ‘safe’ with little risk of injury or death to humans, or risk
of damage to property. This includes all mains voltage household electric
goods supplied by the landlord such as cookers, kettles, toasters, electric
blankets, washing machines etc. Any equipment supplied must also
be marked with the appropriate CE marking (Conformité Européene /
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2.8.2 Building Regulations Part P
Declaration of Conformity).
In order to meet these obligations either supply new appliances or get any
appliances provided checked by a qualified electrician before the property
is let to new tenants. All paperwork regarding the items (i.e. receipts,
warranties, records of inspection) should be kept for a minimum period of
six years.
One way of helping to achieve safety is to undertake a regular formal
inspection of the installation and appliances on an annual basis. The
Electrical Safety Council advises that as a minimum, landlords should:
• check the condition of wiring, and check for badly fitted plugs,
cracks and chips in casings, charring, burn marks or any other
obvious fault or damage
• check that the correct type and rating of fuses are installed
• ensure all supplied appliances are checked by a competent
person at suitable periods and that any unsafe items are
removed from the property. Record details of all electrical
appliances, including their condition and fuse rating
• ensure that instruction booklets are available at the property
for all appliances and that any necessary safety warnings are
given to tenants
• avoid purchasing second-hand electrical appliances for rented
properties that may not be safe and
• maintain records of all checks carried out.
Although there is no statutory requirement to have annual safety checks
on electrical installations as there is with gas, the Institution of Electrical
Engineers recommends a formal periodic inspection and test being carried
out on the installation at least once every 10 years or on a change of
tenancy.
There is, however, a statutory requirement that all HMOs (both licensable
and not licensable) must have their mains installation inspected every five
years.
It may also be appropriate that where any risk is found to be enhanced, for
example where an installation is old or where damage is regularly found, a
more frequent inspection regime will be necessary.
Periodic inspection and testing and any necessary remedial work must only
be undertaken by someone competent to do such work. On completion, a
periodic inspection report, which indicates the installation is satisfactory
(or why it is not), should be issued by the person carrying out the work and
this should be acted upon and retained by the landlord.
The regulations relating to electrical installations fall into two categories:
existing installations and new work.
New Work
The design, installation, inspection and testing of electrical installations is
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2.8.3 Further Guidance
2.9 Safety of Furniture
2.9.1 The Furniture and
Furnishings (Fire) (Safety)
Regulations 1988
controlled under Part P of the Building Regulations which applies to houses
and flats and includes gardens and outbuildings such as sheds, garages and
greenhouses.
All work that involves adding a new circuit or is to be carried out in
bathrooms and kitchens will need to be either carried out by an installer
registered with a Government-approved competent person scheme or
alternatively notified to building control before the work takes place.
Generally, small jobs such as the provision of a socket outlet or a light
switch on an existing circuit will not be notified to the local authority
building control.
More details can be found in Approved Document P published by the CLG
and in their guidance leaflet Rules for Electrical Safety in the Home.
On completion of any new electrical installation work an Electrical
Installation Certificate or Minor Works Form should be issued by the
electrician or installer carrying out the work and this should be retained by
the landlord.
Building regulations are enforced by local authority building control
officers and they can be consulted for further information about
compliance with these regulations.
For further guidance about electrical safety and the competency of
electricians and installers to carry out new work or undertake the formal
periodic inspection and test of an existing installation, refer to the
information provided on the Electrical Safety Council’s website:
www.esc.org.uk.
If furnished accommodation is being provided it is important to understand
the need to provide safe furniture and furnishings, particularly in relation
to fire safety.
Since 1 January 1997 persons who hire out furniture in the course of a
business (and this includes furniture provided with rented accommodation)
are required to comply with the Furniture and Furnishings (Fire) (Safety)
Regulations 1988 which set safety standards for fire and flame-retarding
requirements for upholstered furniture manufactured after 1950 or where
the tenancy commenced after March 1993. The regulations relate to:
• furniture meeting a cigarette resistance test
• cover fabric, whether for use in permanent or loose covers,
meeting a match resistance test and
• filling materials for all furniture meeting ignitability tests.
Tenancies that commenced prior to 1993 are exempt, but all additional or
replacement furniture added after 1993 must comply with fire resistance
requirements. A new tenant after 1993 means that all relevant furniture
must comply.
The regulations require that:
All new furniture (except mattresses, bed bases, pillows, scatter cushions,
seat pads and loose and stretch covers for furniture) must carry a display
label at the point of sale. This is the retailer’s responsibility.
All new furniture (except mattresses and bed bases) and loose and stretch
covers are required to carry a permanent label providing information
about their fire-retardant properties. Such a label will indicate compliance,
The Responsibilities and Liabilities of the Landlord/Letting agent 37
1 Pre-tenancy
2.10 Houses in Multiple Occupation (HMO)
2.10.1 Definition of an HMO
although lack of one in second-hand furniture would not necessarily imply
non-compliance as the label might have been removed.
Generally, if second-hand furniture has not been bought from a reputable
dealer and is not labelled, then it should be assumed that the furniture will
fail to meet the regulations.
The regulations apply to any of the following that contain upholstery:
• furniture
• beds, headboards of beds, mattresses
• sofas, sofa beds, futons and other convertibles
• scatter cushions and seat pads
• pillows and
• loose and stretch covers for furniture.
The regulations do not apply to:
• sleeping bags
• bedclothes (including duvets)
• loose covers for mattresses
• pillowcases
• curtains
• carpets.
The regulations relate only to items provided by the landlord and do
not apply to items provided by the tenants for which the landlord is not
responsible.
The publication A Guide to the Furniture and Furnishings (Fire) (Safety)
Regulations is available from the Department for Business Enterprise &
Regulatory Reform (BERR) website: www.berr.gov.uk/files/file24685.pdf
Special requirements apply to types of properties known as Houses
in Multiple Occupation (HMOs) which place special responsibilities on
landlords and agents.
An HMO is defined in sections 254-259 of the Housing Act 2004. In simple
terms, an HMO is a building, or part of a building, such as a flat, that:
• is occupied by more than one household and where the
occupants share, lack, or must leave their front door to use an
amenity such as a bathroom, toilet or cooking facilities
• is occupied by more than one household in a converted
building where not all the flats are self-contained. ‘Selfcontained’ means that all amenities such as kitchen, bathroom
and WC are behind the entrance door to the flat
• is a converted block of self-contained flats, but does not meet
the requirements of the Building Regulations 1991, and less
than two thirds of flats are owner-occupied.
The households must occupy the building as their only or main residence
(remembering that tenants can have more than one main residence)
and rent must be payable in respect of at least one of the household’s
occupation of the property.
38 The Responsibilities and Liabilities of the Landlord/Letting agent
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2.11 Duties on the
Manager of an HMO
Generally a household is a family (including co-habiting and same-sex
couples or other relationship, such as fostering, carers and domestic
staff). The definition of a family also includes parent, grandparent, child,
stepchild, grandchild, brother, sister, uncle, aunt, nephew, niece, cousin and
‘a relationship of the half-blood shall be treated as a relationship of the
whole blood’.
Each unrelated tenant sharing a property will be considered a single
household.
Properties which are shared by two individuals are exempt from the HMO
definition as are those with a resident landlord with no more than two
lodgers.
A self-contained unit is one which has a kitchen (or cooking area), bathroom
and toilet for the exclusive use of the household living in the unit. If
the occupiers needs to leave the unit to gain access to any one of these
amenities then the unit is not self-contained.
The Management of Houses in Multiple Occupation (England) Regulations
2006 and 2007 place specific duties on the manager of an HMO. Failure to
comply with the regulations is a criminal offence, leading to fines of up to
£5,000 on conviction. This section highlights some of the key duties in the
regulations:
Duty to provide information to occupiers
• the name, address and telephone number of the manager
must be provided to each household in the HMO and the same
information must be displayed in a prominent position in the
common parts of the HMO.
Duty to take safety measures
• means of escape from fire must be kept free of obstruction
and kept in good order and repair
• fire-fighting equipment, emergency lighting and alarms must
be kept in good working order
• all reasonable steps must be taken to protect occupiers from
injury with regard to the design of the HMO, its structural
condition and the total number of occupiers. In particular, any
unsafe roof or balcony must be made safe or all reasonable
measures taken to prevent access to them. Safeguards must
be provided to protect occupiers with windows with sills at or
near floor level
Duty to maintain the water supply and drainage
• these must be maintained in proper working order - namely
in good repair and clean condition. Specifically, storage tanks
must be effectively covered to prevent contamination of water,
and pipes should be protected from frost damage.
Duty to supply and maintain gas and electricity
• these should not be unreasonably interrupted by the landlord
The Responsibilities and Liabilities of the Landlord/Letting agent 39
1 Pre-tenancy
2.11.1 Duties of Occupiers of HMOs
or manager
• all fixed electrical installations must be inspected and tested
by a qualified engineer at least once every five years and a
periodic inspection report obtained
• the latest gas safety record and electrical safety test results
must be provided to the council within seven days of the
council making a written request for them.
Duty to maintain common parts, fixtures, fittings and appliances
• all common parts must be kept clean, safe, in good decorative
repair and working order and free from obstruction
• in particular, handrails and banisters must be provided and
kept in good order, any stair coverings securely fixed, windows
and other means of ventilation kept in good repair and
adequate light fittings available at all times for every occupier
to use
• gardens, yards, outbuildings, boundary walls/fences, gates,
etc., which are part of the HMO should be safe, maintained in
good repair, kept clean and present no danger to occupiers/
visitors
• any part of the HMO which is not in use (including areas giving
access to it) should be kept reasonably clean and free from
refuse and litter.
Duty to maintain living accommodation
• the internal structure, fixtures and fittings, including windows
and other means of ventilation, of each room should be kept
clean, in good repair and in working order. Each room and
all supplied furniture should be in a clean condition at the
beginning of the tenant’s occupation.
Duty to provide waste disposal facilities
• no litter should be allowed to accumulate, except for
that stored in bins provided in adequate numbers for the
requirements of the occupiers. Arrangements need to be made
for regular disposal of litter and refuse having regard to the
council’s collection service.
The regulations also place a number of duties upon the occupiers (the
tenants) of an HMO.
These duties include:
• not obstructing the manager in the performance of their
duties
• allowing the manager access to the accommodation at all
reasonable times for the purpose of carrying out their duties
• providing information to the manager which would be
reasonably expected to enable them to carry out their duties
• acting reasonably to avoid causing damage to anything the
40 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.11.2 Duty to carry out a Fire Risk
Assessment
2.11.3 LGA (formerly LACORS)
National Fire Safety
Guidance
2.12 Licensing of Private
Rented Properties
manager is under a duty to supply, maintain or repair
• storing and disposing of litter and refuse as directed
• complying with reasonable instructions of the manager with
regard to any fire escape, fire prevention measures and fire
equipment.
If an occupier breaches their duties under the regulations it is likely to put
their tenancy at risk, and the landlord/manager may be able to take legal
action against the tenant. Tenants can also be prosecuted by the local
authority with a maximum fine of £5,000. The regulations impose duties
on both landlords/managers and tenants, and both can be prosecuted and
fined for breaching them.
The Regulatory Reform (Fire Safety) Order 2005 (known as the FSO)
introduced duties in relation to fire safety in the common areas of HMOs,
flats and maisonettes. The duty is placed on the responsible person, who
is required to carry out a fire risk assessment and take specific action to
minimise the risk of fire in the common parts. ‘Responsible person’ means
‘the person who has control of the premises in connection with the carrying
on of a trade, business or other undertaking’. In practice this will usually be
the landlord, but in the case of absentee landlords where the ‘carrying on
of the business’ is undertaken by a managing agent it may be the managing
agent.
Where a house is let as a shared house on a single tenancy then there are no
‘common parts’ and so a risk assessment is not required under the regulations.
These provisions are enforced by fire and rescue authorities and there is
therefore a dual enforcement regime in place in multi-occupancy premises. In
order to avoid duplication and the potential for conflict, a Fire Safety Protocol
has been established as a framework for joint working arrangements between
the fire and rescue authorities and local authorities.
In July 2008 the Local Authorities Co-ordinator of Regulatory Services
(LACORS) issued national fire safety guidance for landlords and local
authorities in England. As Welsh statutory fire safety requirements are very
similar, the guidance may also be relevant in Wales.
Compliance with the guidance will satisfy landlords’ legal requirements
under the Fire Safety Order, and is available at: www.lacors.gov.uk/lacors/
NewsArticleDetails.aspx?id=19844 (See two thirds down the page ‘To
download a PDF version...’)
The guidance explains the general principles of fire safety and how to carry
out and record a fire safety risk assessment.
Part D of the guidance provides very useful illustrations of the fire
precautions that may be suitable for the most common property types.
The illustrations are based on properties being of normal fire risk and the
guidance explains the factors that determine normal risk.
In addition to HMOs the guidance includes fire safety advice for singly
occupied properties. The Housing Act 2004 requires such properties to be
fire safe.
The Housing Act 2004 introduced licensing of private rented premises. It is
compulsory to license larger, higher-risk dwellings, but local authorities are
The Responsibilities and Liabilities of the Landlord/Letting agent 41
1 Pre-tenancy
2.12.1 Purpose of Licensing
2.12.2 Mandatory Licensing of
HMOs
2.12.3 Additional Licensing of
HMOs
2.12.4 Selective Licensing of Other
Residential Accommodation
also able to license other types of rented premises, including other lowerrisk HMOs and individual houses and flats, if they can establish that other
avenues for tackling problems in these properties have been exhausted.
Licensing is intended to make sure that:
1. a landlord is a fit and proper person (or employs a manager
who is)
2. each premises is suitable for occupation and
3. the standard of management is adequate.
This is to ensure tenants are protected and that the risk of anti-social
behaviour is reduced. High-risk premises can be identified through
licensing and targeted for improvement by a local authority under the
Housing Health and Safety Rating System (HHSRS).
The landlord of a licensable dwelling must apply to the local authority for a
licence. The local authority can clarify whether a property is licensable.
If the landlord refuses to apply for a licence (or cannot satisfy the ‘fit and
proper’ person criterion) and does not use a managing agent, the local
authority must manage the property instead.
More information about mandatory HMO licensing can be found below and
on the CLG website at www.communities.gov.uk.
Mandatory licensing applies if the HMO or any part of it:
• comprises three storeys or more
• is occupied by five or more persons and
• is occupied by persons from two or more households.
The Housing Act 2004 gives local authorities the discretion to establish
additional HMO licensing schemes, to cover smaller types of HMO where
management problems have been identified.
Before setting up such a scheme, the local authority must follow the legal
process which includes:
• identifying the problems arising from that type of HMO
• considering whether any other course of action to deal with
the problems is available
• ensuring the scheme is consistent with their local housing
strategy
• consulting with those likely to be affected including tenants,
landlords, landlord organisations etc.
A scheme does not come into effect until three months after it is made and
a scheme may last for up to five years.
Part 3 of the Housing Act 2004 gives local authorities the discretion
to introduce selective licensing schemes to cover all privately rented
property, but not HMOs which are covered by Mandatory and Additional
Licensing, in designated areas which suffer, or are likely to suffer from,
low housing demand and also those which suffer from significant and
persistent anti-social behaviour. The use of this discretionary power is
subject to local consultation.
Before setting up such a scheme, the local authority must follow the legal
42 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.12.5 Applying for a Licence
2.12.6 Fit and Proper Person Test
2.12.7 Licence Conditions
process which includes:
• identifying the problems arising from that type of HMO
• considering whether any other course of action to deal with
the problems is available
• ensuring the scheme is consistent with their local housing
strategy
• consulting with those likely to be affected including tenants,
landlords, landlord organisations etc.
A scheme does not come into effect until three months after it is made and
may last up to five years.
Anyone who owns or manages a licensable premises, whether under the
mandatory scheme or an additional or selective scheme, has to apply to the
local authority for a licence.
The local authority must give a licence if it is satisfied that the:
• HMO is reasonably suitable for occupation by the number of
people allowed under the licence
• the proposed licence holder or the proposed manager (if there
is one) is a fit and proper person
• the proposed licence holder is the most appropriate person to
hold the licence
• the proposed management arrangements are satisfactory
• the person involved in the management of an HMO is
competent and the financial structures for the management
are suitable.
In determining whether the licence applicant is a ‘fit and proper person’ the
local authority will take into account a number of factors, including:
• any unspent convictions relating to violence, sexual offences,
drugs and fraud
• whether the person has breached any housing or landlord and
tenant law
• whether they have been found guilty of unlawful
discrimination.
A licence will last for up to five years and the local authority normally
charges a fee to cover the cost of issuing the licence. In some local
authorities discounts are given if the landlord or property is accredited or if
an application is made with a plan.
The licence will specify the maximum number of people who may live in
the property. The following conditions must apply to every licence:
• a valid current gas safety record, which is renewed annually,
must be provided (for properties that have gas)
• proof that all electrical appliances and furniture are kept in a
safe condition
• proof that all smoke alarms and emergency lights are correctly
positioned and installed
• each occupier must have a written statement of the terms on
which they occupy the property. This may be, but does not
have to be, a tenancy agreement.
The Responsibilities and Liabilities of the Landlord/Letting agent 43
1 Pre-tenancy
2.12.8 Renewing a Licence
2.12.9 Properties where a Licence
may be refused
2.12.10Temporary Exemption from
Licensing
For a selective licence there is a requirement for references from
prospective occupiers.
The local authority may also apply other conditions of their own which may
include any of the following:
• restrictions or prohibitions on the use of parts of the property
by occupants
• action necessary to deal with the anti-social behaviour of
occupants or visitors
• ensuring the condition of the property and its contents, such
as furniture and all facilities and amenities (e.g. bathroom and
toilets) are in good working order and ensuring that specified
works or repairs are carried out within certain time limits
• for an HMO, a requirement that the responsible person attends
an approved training course in relation to any approved code
of practice.
Many licences, first issued for five years, are now coming up for renewal.
There has been no change in primary legislation so a property that is
currently licensed will need its licence renewed in order to operate
legally. If there has been no significant change in the property, many local
authorities are now asking landlords to renew their initial licence rather
than reapply as if an entirely new licence was required. Contact the local
authority or check on their website which is the easiest way of renewing
the licence. It is important that a renewal is requested before the initial
licence runs out.
If the property is not suitable for the number of occupants, is not properly
managed or the landlord or manager is not a fit and proper person, a
licence will not be granted. If a property cannot be granted a licence the
council must make an Interim Management Order (IMO), which will allow
the local authority to manage the property (either directly or indirectly
through a nominated partner).
The IMO can last for a year until suitable permanent management
arrangements can be made. If the IMO expires and there has been no
improvement, then the council can issue a Final Management Order (FMO).
This can last up to five years and can be renewed.
If the landlord or person in control of the property intends to stop
operating as a licensable property or legally reduce the numbers of
occupants and can provide evidence of this, then they can apply for a
Temporary Exemption Notice (TEN).
This lasts for a maximum of three months and ensures that a property in
the process of being converted from a licensable property does not need to
be licensed. If the situation is not resolved, then the landlord can apply for
a second Temporary Exemption Notice for a further three months.
When this expires the property must be licensed, become subject to an
IMO, or cease to be a licensable property. TENs also apply where the licence
holder dies. The property will be treated as if it is subject to an exemption
notice for three months, during which time the estate can either apply for a
new licence or cease to run the property as a licensable property. If it takes
longer than the initial three months the estate can apply for one further
44 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
2.12.11Right of Appeal Against a
Local Authority’s Decision
2.12.12Offences
2.12.13Rent Repayment Orders
2.13 Planning Control
exemption notice.
A landlord can appeal to the Residential Property Tribunal Service (RPTS),
normally within 28 days, if the local authority refuses a licence, grants a
licence with conditions or revokes or varies a licence.
More information about the work of the RPTS and the jurisdiction of
residential property tribunals under the Housing Act 2004 can be obtained
from www.justice.gov.uk/tribunals/residential-property
It is a criminal offence if the landlord or the person in control of the
property fails to apply for a licence for a licensable property or allows a
property to be occupied by more people than are permitted under the
licence. A fine of up to £20,000 may be imposed. In addition, breaking any
of the licence conditions can result in fines of up to £5,000. Note also, that
no section 21 notice [see section 5.5.7 for more information about section
21 notices] may be given in relation to a shorthold tenancy of a part of a
licensable HMO so long as it remains unlicensed. This means that where
a licence is compulsory, unlicensed HMO landlords will be unable to evict
their tenants by the notice-only section 21 procedure.
The local authority may apply to the RPTS for a ‘rent repayment order’
allowing it to reclaim any housing benefit that has been paid during the
time the property was without a licence up to a maximum of 12 months.
A tenant living in a property may also make an application to claim back
any rent they have paid during the unlicensed period, up to a maximum
of 12 months, if the landlord has been convicted of operating a licensable
HMO without a licence, or has been required by a rent repayment order to
make a payment to the local authority in respect of housing benefit on the
property.
For more information about HMO licensing go to: www.communities.gov.
uk/housing/rentingandletting/privaterenting/housesmultiple/
For more information about selective licensing go to: www.communities.
gov.uk/housing/rentingandletting/privaterenting/selectivelicensing/
Planning approval is essentially about controlling the use of land and is
required to alter, extend or change the use of existing properties, or to
make changes to a listed building or to a property in a conservation area.
Planning approval is needed when a previously singly occupied property is
converted into bedsit units or flats.
Approval is not normally required for a property let as a shared HMO for up
to six tenants on a group contract, living together as a single household and
where no significant changes have been made to the property. For a group
of seven or more the presumption should be made that approval may be
needed and the advice of the local planning authority should be obtained.
In around 25 towns (mainly associated with large numbers of students)
local authorities have obtained what are known as Article 4 powers, which
means that planning permission is required for any new HMOs. HMOs that
existed before these powers came into effect retain their use whilst being
used as HMOs.
In each locality there will be a separate planning policy or guidance
pertinent to a designated area of control. In this case, the guidance of
The Responsibilities and Liabilities of the Landlord/Letting agent 45
1 Pre-tenancy
the planning authority should be sought before undertaking any work to
convert a house to an HMO as permission for this may not be forthcoming.
If an existing HMO is being purchased, the purchasers should ask for
confirmation from the seller (normally in the form of a letter from the
relevant planning authority) that the house has been previously used as an
HMO.
These are comparatively new and evolving powers and there is still
much confusion and uncertainty about the policies being followed. What
happens if a house changes occupancy levels? Is existing HMO usage based
on current or previous occupancy?) What happens if a house is let to a
single household and then reverts back to an HMO?
To obtain planning approval, an application with detailed drawings and
payment of a fee is made to the local planning authority. The authority will
consider the application, may consult with local residents and will then
issue a decision with the reasons for that decision. The approval may have
conditions attached.
An applicant aggrieved by the decision can appeal against it to the Planning
Inspector or may negotiate with the planning authority and amend and resubmit the application.
Enforcement action can be taken against unapproved developments
requiring the reinstatement of the property back to its original condition.
The interactive site given below provides an illustration of works that
require Planning and Building Regulations approval. www.planningportal.
gov.uk/uploads/hhg/houseguide.html
Unapproved conversions of singly occupied houses to HMOs and flats are
outside the time limits for enforcement action by planning authorities if
established use can be proved for 10 years in the case of bedsit properties,
and four years for buildings in flats.
After the above time periods an application can be made to the planning
authority for a Certificate of Lawful Use (CLU). This means that the use of
the property is lawful despite the use not having planning approval.
New ‘building work’ must comply with Building Regulations and includes:
• installation of a service, e.g. washing or sanitary facilities
• material alterations to the structure
• conversions to flats
• some major repairs.
There are two optional procedures available to carry out works with
Building Regulations approval for which a fee is payable.
1. Full Plans Application
This is the normal procedure for most works, whereby the local authority’s
Building Control Service approves plans and details of the proposed
works as being compliant before works commence. The application can
be approved with or without conditions, or refused or have amendments
2.13.1 Obtaining Planning
Approval
2.13.2 Certificate of Lawful Use
2.14 Building Regulations
Approval
2.14.1 Obtaining Building
Regulations Approval
46 The Responsibilities and Liabilities of the Landlord/Letting agent
1 Pre-tenancy
requested.
A Commencement Notice is given to the Building Control Inspector when
works start. At pre-determined critical stages the contractor notifies the
inspector that certain works are being carried out so that those works can
be inspected to check compliance before being covered over.
A Completion Certificate is issued by the inspector at the end of work
stating that the works have been carried out in compliance with Building
Regulations.
2. Building Notice Procedure
This procedure is suitable for small-scale works that need to progress
quickly and where pre-approval of plans is not essential.
The contractor gives a Building Notice to the Building Control Service that
works are about to start and which will then be inspected as they progress.
The contractor will be advised if any works are not likely to be Building
Regulations compliant so corrective action can be taken.
An alternative to using a local authority building control service is to
use a private sector approved inspector’s building control service.
The procedures are similar with the exception of some additional
administration to keep the local authority, as the statutory enforcement
authority, informed of progress.
‘Unapproved’ building works are liable to enforcement action if discovered
within 12 months of completion.
Further information is available from:
www.direct.gov.uk/en/HomeAndCommunity/Planning/
BuildingRegulations/DG_10014170
