Gas safety regulations

The Gas Safety (Installation & Use) Regulations 1998 place a statutory duty on all landlords of residential property to ensure that all gas appliances, pipework and flues are maintained in a safe condition. They particularly seek to avoid the escape of carbon monoxide poison which is silent, odourless and deadly and require that:
• all let properties must have at all times a valid Gas Safety Record, even if the gas supply consists only of a capped off gas pipe where all other pipework and appliances have been removed;
• before a tenant takes occupation, the gas appliances and pipework must be checked by a CORGI registered engineer who must provide the landlord with a Gas Safety Record (the landlord must provide the tenant(s) with a copy of that safety record at the start of the tenancy);
• a gas safety check must be carried out annually and the tenant(s) provided with a copy of the safety record within 28 days of that check being carried out (this does not mean you have a 28 day grace period between a Gas Safety Record expiry and a new record being issued); and
• the landlord must also keep a copy of each
Gas Safety Record for at least two years.

Letting agents, if used, are also liable under the regulations to ensure that the Gas Safety Record is in place and all equipment and appliances comply.

Non-compliance with the safety regulations is a criminal offence and carries monetary penalties or imprisonment or both. In the event of a death, charges could extend to manslaughter. If the property is found to be unsafe or in breach of any of the safety regulations the landlord and agent, depending on the circumstances, can be held responsible for the consequences.

It may be a defence to any prosecution that the landlord or the letting agent concerned took all reasonable steps and exercised all due diligence to avoid committing the offence.

From April 2005, it will be necessary to register any new gas installation in a residential property with CORGI who will then issue a declaration of safety which will form part of the house seller’s information pack which everybody marketing a property will need to prepare as from 2007.

The Furniture and Furnishings (Fire) (Safety) Regulation 1988
- as amended 1993

These regulations require that the following furniture and soft furnishings supplied by the landlord in let properties meet fire safety standards:
• beds, headboards of beds, mattresses (of any size);
• sofas, sofa-beds, futons and other convertibles;
• nursery furniture;
• garden furniture which is suitable for use in a dwelling;
• furniture in new caravans;
• scatter cushions, bean bags, window seats and seat pads;
• pillows;
• padded stools and padded chests (Ottomans);
• put-u-up beds and garden loungers/seats;
• loose and stretch covers for furniture.

Furniture manufactured since March 1989 will comply with these regulations and most will be marked with a label showing compliance.

The regulations do not apply to:
• sleeping bags;
• bed-clothes (including duvets) and pillowcases;
• loose covers for mattresses;
• curtains and carpets;
• furniture and furnishings manufactured before 1 January 1950 as the inflammable materials were not in use prior to 1950 (‘period’ or antique furniture would be exempt unless it had been re-upholstered in the intervening period); and
• properties let continuously to the same tenant since prior to December 1996 until there is change of tenancy.

Non-compliance with the above regulations is a criminal offence and carries penalties of a £5,000 fine, 6 month’s imprisonment, or both. In the event of a death, charges could extend to manslaughter.

The Electrical Equipment (Safety) Regulations 1994

These regulations require that all appropriate electrical equipment supplied in a property must be safe to use. Unlike the Gas Safety Regulations, there is no mandatory requirement for the equipment to undergo any safety testing, but the duty of care remains the same.

The following guidelines apply to all electrical appliances supplied for the tenancy:
• live parts should not be accessible;
• leads should not be worn or frayed and be complete with no joins;
• trailing leads and the use of multiple plug adaptors should be avoided;
• correct plugs (marked ‘B SECTION 136’) should be fitted and correctly fused;
• plug sockets should be firmly fastened to the wall or skirting;
• any moving parts should be guarded;
• electric blankets should be serviced according to the manufacturer’s instructions; and
• microwave doors should be clean, free from corrosion and effective.
• washing machines, cookers, etc, should be serviced and in good working order;
• electrical heaters and central heating appliances should be serviced annually;
• fireguards should meet BS3248; and
• any fire extinguishers should be marked ‘BS6575 1985’.

Although there is no mandatory requirement for equipment to be checked – nor any stipulations as to how often the electrical supply or appliances might need to be checked – we urge all our landlords to have all electrical appliances and electrics (wiring, plugs and sockets, etc) checked before the start of a tenancy and regularly thereafter.

If landlords or agents should be found guilty of non-compliance with these regulations, the penalties are severe in monetary terms and include possible imprisonment.

If landlords and/or agents can prove that ‘reasonable’ steps have been taken and all due diligence to (a) avoid committing an offence and (b) rectify any problems brought to their attention, then the danger of prosecution could be avoided.

Plugs and Sockets (Safety) Regulations 1994

These regulations require that where any plug, socket or adapter supplied for intended domestic use, that it complies with the appropriate current standard, and specifically that:
• the live and neutral pins on plugs are part insulated so as to prevent shocks when removing plugs from sockets; and
• all plugs are pre-wired.

Building regulations part P, Electrical safety in dwellings

Part P came into effect in England and Wales on 1 January 2005 making it a legal requirement for certain types of electrical work in dwellings – and associated buildings such as garages, sheds, greenhouses and outbuildings – to comply with the UK safety standard BS 7671:2001.

The table below summarises the types of electrical work that are affected by the legislation. Anyone carrying out these ‘notifiable’ types of electrical work must either be registered with one of the Government-approved Competent Person Self-certification Schemes or they must submit a building notice to the local authority before starting the work.

Whether work is notifiable is dependent on the nature of installation work proposed and its location within a dwelling. The location is important because some locations may pose a greater risk.

Selective licensing of private landlords – (Housing Act 2004)

Part 3 of the Act provides that a local housing authority (LHA) may make a licensing scheme for privately rented accommodation in its area, or any part of it, providing certain conditions are met.

A scheme may be made if the area satisfies one of the following conditions:
• An area has low housing demand (or is likely to become such an area) with a significant stock of privately owned houses let on short term arrangements and the LHA is satisfied the introduction of licensing, when combined with other measures taken by the LHA, solely, or in conjunction with others, would lead to an improvement in the social or economic conditions of the area.
• An area is experiencing a significant and persistent problem caused by anti-social behaviour and that some or all private sector landlords in the area are not taking appropriate action to combat the problem and the LHA is satisfied the introduction of licensing, when combined with other measures taken by the LHA or in conjunction with others, will lead to a reduction or elimination of the problem.

Most private landlords will be required to obtain a licence (either for themselves or for their managing agents) in order to let or manage residential property in an area where a licensing scheme exists.

Tenancies with a Registered Social Landlord or Local Authority will be exempt. Holiday lets will also be exempt.

Certain tenancies and other lettings will be excluded by regulations from licensing, such as tenancies under a long lease, business tenancies or where the local authority has taken action to close the property down.

If the property is a House in Multiple Occupation (HMO) and is required to be licensed under Part 2 of the Act no licence is required under a selective licensing scheme.

The property will also be exempted from licensing if a temporary exemption notice is in force.

A licence fee is payable.

Controlling or managing a house which ought to be licensed, but is not licensed, without a reasonable excuse for doing so will be a criminal offence, subject to a maximum fine of £20,000. A person will not be guilty of such an offence if there is an effective application outstanding with the LHA for the grant of a licence or a temporary exemption notice.

Where a property is required to be licensed , but is not, and no application for a licence or exemption from licensing has been made to the LHA, the landlord may not use the procedure in section 21 of the Housing Act 1988 to recover possession at the end of an Assured Shorthold Tenancy. An LHA (and in certain cases an occupier, or, former occupier) may apply to a Residential Property Tribunal (RPT) where rent or a licence fee has been paid during a period when the property was required to be licensed, but was not.

Houses in multiple occupation (HMO)

The Housing Act 2004 introduced licensing for houses in multiple occupation (HMOs). The Act provides a detailed definition of HMOs and sets out standards of management for this type of property.

Most of the Act came into force on 6 April 2006.

Under the new laws, there are two types of HMO licensing:
• mandatory licensing; and
• additional licensing.

Licensing is mandatory for all HMOs which have three or more storeys and are occupied by five or more persons forming two or more households. Additional licensing is when a council can impose a licence on other categories of HMOs in its area which are not subject to mandatory licensing. The council can do this if it considers that a significant proportion of these HMOs are being managed sufficiently ineffectively so as to give rise to one or more particular problems, either for the occupants of the HMOs or for members of the public.

For a building or part of a building (such as a flat) to be classified as an HMO under the Act it must meet all of the following tests:

The building test
An HMO is a building or part of a building
• in which more than one household shares an amenity (or the building lacks an amenity) such as a bathroom, toilet or cooking facilities1 or
• which is a converted building that does not entirely comprise self contained flats (whether or not there is also a sharing, or lack, of amenities) or;
• which is comprised entirely of converted self contained flats and where the standard of conversion does not meet the minimum that is required by the 1991 Building Regulations, and more than one third of the flats are occupied under short tenancies.

The residence test
For a building to be classified as an HMO it must also be occupied by more than one household as their only or main residence. This includes occupation:
• by asylum seekers and migrant and seasonal workers
• as a refuge by persons escaping domestic violence; or
• by students in higher or further education.

If a council is satisfied that a building is not being used entirely as the occupiers’ only or main residence, but that a significant number of the occupiers are living there on that basis, it can serve an HMO Declaration. This has the effect of bringing the building within the HMO definition. Such a declaration may, for example, be made in respect of a Bed and Breakfast establishment which provides both tourist accommodation and housing for some of its residents on a more permanent footing.

The more-than-one-household test
A group of people who are not all members of the same family living in the same building will form more than one household. A ‘household’ is either a single person or members of the same family who are living together. This includes people who are married or living together as married (including those in same-sex relationships). It also includes specific relatives who are living together: parents, grandparents, children (and step-children), grandchildren, brothers, sisters, uncles, aunts, nephews, nieces or cousins. Foster children are also treated as part of their parents’ household.

The consideration test
An important additional requirement for a building to be classified as an HMO is that some 'consideration' needs to be payable for the occupation. This will usually be in the form of rents or fees but it also includes, for example, employment where 'live-in' accommodation is provided – except in the case of certain types of domestic employment.

Certain buildings exempt from the HMO definition include:
• those occupied by the resident landlord and a maximum of two other persons who are not part of his or her household; and
• those occupied by no more than two persons.

Mandatory HMO licensing applies across England to all HMOs of three or more storeys and occupied by five or more persons forming more than one household.

Councils have discretionary powers to extend licensing to other categories of HMO which are not subject to mandatory licensing. This is known as additional HMO licensing. Before designating an area to be subject to additional licensing, a local council must consider that a significant proportion of HMOs in that area are causing problems for tenants or the neighbourhood due to poor management. The use of this power is also be subject to consultation with those who would be affected by the designation, and approval from Government.

Running an HMO without a license, or breaching the terms of a licence, is a criminal offence carrying a fine of up to £20,000.

Section 47, Landlord and Tenant Act 1987

This legislation requires that every demand for rent carries the address of the landlord and if that address is outside England and Wales the demand for rent must also carry an address in England and Wales where notices in proceedings can be served on the landlord.

Failure to comply with section 47 means that any portion of the rent which is attributable to service charge is not lawfully due. The address of the landlord on such a written demand could be the landlord’s office address, rather than home address.

Section 48 Landlord and Tenant Act 1987

This requirement is very similar to section 47 but with a subtle difference – it requires that the tenant must be given an address in England where notice of proceedings can be served on the landlord – it follows that this address does not have to be that of the landlord.

Until section 48 of the Landlord and Tenant Act 1987 is complied with rent is not lawfully due.

Section 11, Landlord and Tenant Act 1985

This legislation requires landlords to:
• keep the structure and exterior of the property in good repair, including drains, gutters and external pipes;
• keep installations for the supply of water, gas, electricity and sanitation in good repair and proper working order; and
• keep installations for space heating and water heating in good repair and proper working order.

Landlords also have an implied right to view the condition and state of repair of their property on giving the tenant 24 hours notice in writing.

Taxation of Income from Land (Non-Residents) Regulations 1995

Any landlord who is considered non-resident for taxation purposes is liable to pay tax on the rental income arising from letting his property.

When a landlord is resident abroad and the agent is collecting rent from the tenant on his or her behalf, the agent is obliged to deduct tax at the basic rate (less allowable deductions) and each quarter to account for and pay to the Inland Revenue this tax deducted. However, overseas landlords may apply to the Inland
Revenue for an exemption from this requirement.

Where a tenant pays rent direct to a landlord who is resident abroad, the liability to deduct income tax as outlined above remains the same, except that becomes the responsibility of the tenant. Non-resident status includes those living in the Channel Islands, Isle of Man and the Republic of Ireland.

The Accommodation Agencies Act 1953

The Accommodation Agencies Act 1953 is a very short, but long standing, piece of legislation which has limited modern application.

It prohibits an agent from advertising a property to rent, without the express consent and instructions from a landlord client. It also prohibits certain specific practices by agents, such as charging members of the public for giving them a list of properties available to rent. Such a list must be supplied to members of the public without charge.

Obtaining consent to let a property

Before letting a property, landlords must obtain permission, as applicable, from:
• Any bank, building society or lender whose loan or mortgage is secured against the property. If the landlord has not obtained consent from his lender the tenancy is deemed an unlawful tenancy which gives the lender an automatic right to take possession of the property.
• In respect of leasehold properties, the head landlord, (the terms and conditions of the long leasehold will almost certainly require that permission is sought before letting).
• Any housing association or other body which has regulations applying to the property, for example in the case of shared ownership or local housing authority property.
• Any adult who has been living in the property with the landlord as husband, wife or partner who may have occupancy rights.
• The landlord's insurance company who must confirm that cover will be maintained if the property is let. In particular it is important that the public liability element covers any loss or injury occurring at the property, which might be sustained by the tenant or visitors during the tenancy, for which the landlord could be liable.

The Protection from Eviction Act 1977

Neither the landlord nor the agent is entitled to regain possession of a property from an occupier who is unwilling to leave without a court order. To do so is a criminal offence punishable by a fine or imprisonment. Harassment, for example, cutting off services, changing locks or removing a tenant’s possessions, is also a criminal offence.

Stamp Duty Land Tax

From 1 December 2003 the old style stamp duty was replaced by stamp duty land tax (SDLT). This is only payable by the tenant, and then only if the total rent under the tenancy agreement exceeds £60,000.

The Data Protection Act 1998

Since the 1984 Data Protection Act was updated by the introduction of the Data Protection Act 1998 and manually maintained paper records have been covered for the first time. This means landlords who hold information on their tenants should be registered data users.

The following rules apply to both companies and individuals holding or processing personal data:
• obtaining and processing of personal data must be fair and lawful;
• personal data must be held only for specified and lawful purposes;
• personal data held for any purpose must be adequate, relevant and not excessive in relation to that purpose;
• personal data must be accurate and, where necessary, kept up to date;
• personal data must not be kept for any longer than is necessary for its purpose;
• an individual is entitled to be informed whether personal data relating to them is being held and to access any such data;
• an individual is entitled, where appropriate, to have such data corrected or erased;
• appropriate security measures must be taken against unauthorised access to, or alteration, disclosure or destruction of, personal data and against accidental loss or destruction of personal data; and
• consent must be obtained from an individual to process their personal data.

A data subject may be entitled to compensation for any damage or distress he or she may have suffered in consequence of inaccurate data held by the data user, or data lost, destroyed or disclosed without authority. Alternatively, a court may order inaccurate records to be rectified or erased.

Longer term tenancies

Any tenancy over three years must be created by deed and such a document can only be created by a solicitor. An oral tenancy can also be created, but this is highly inadvisable.

The Sex Discrimination Act 1975; The Disability Discrimination Act 1995;
The Race Relations Act 1976.

It is unlawful to discriminate against an applicant for a tenancy on the grounds of sex, marital status, disability or race (including colour, nationality, creed, ethnicity or national origin). The new Disability Discrimination Act passed just before Parliament broke for the General Election also makes it unlawful for landlords to refuse unreasonably consent to a disabled tenant to adapt accommodation to his or her needs.

Tenancy deposits

As from 6 April 2007, all deposits taken by landlords for assured shorthold tenancies in England and Wales (the majority of tenancies), have had to be protected via the landlord’s participation in an approved tenancy deposit protection scheme.

There are three approved schemes – two of which are ‘insured’ and one ‘custodial’ in which the deposit is handed over for safe keeping.

Landlords have 14 days from the date they accept a deposit to register it with a scheme and inform the tenants of the details of the protection scheme.

At the end of the tenancy, if the landlord and tenant agree how the deposit should be divided, they will tell the scheme what they have agreed and the money will be paid out accordingly. Should there be a dispute over the deposit, the scheme will hold the amount until the dispute resolution service or courts decide what is fair.

Both custodial and insured schemes feature alternative dispute procedures that can be called on to settle disputes.

Financial Services Authority regulations

With effect from 14 January 2005, only companies that are authorised by the Financial Services Authority (FSA) are legally permitted to sell general insurance products – including home and contents insurance – or even to offer advice or information regarding insurance.

This means that many letting agents who have been providing insurance products and services to their clients are no longer permitted to do so, unless they have taken steps to become FSA authorised, either as an introducer, appointed representative or principal.

Landlords should seek confirmation from their agent, or from anyone who is providing them with insurance, that they are in fact authorised under the new FSA regulations to offer this service.

Energy efficiency certificates

From 6 January 2006, all residential buildings being let or sold in the EU will require an energy performance certificate issued by an accredited expert. More details on this legislation will be available later in the year.

For more information please read our featured article on energy performance certificates.

Based in the south east, Leaders (www.leaders.co.uk) is one of the largest privately owned chain of letting agents in the country. It has branches throughout Sussex, Hampshire and Surrey, concentrate in letting and nothing else, and specialises in letting all types of property, from city centre one bedroom studio flats, two and three bedroom apartments and houses, through to substantial country residences.

The above article is taken from the firm’s publication The Knowledge which can be downloaded in PDF form (http://www.leaders.co.uk/Protem/Knowledge/default.asp). The content has been verified by landlord and tenant law exerts at Dean Wilson Laing solicitors and is correct as at April 2005.

Residential Landlord has a listing of selected firms offering safety check services to landlords – click here to view.