Beware! All tenancies now subject to Fitness for Human Habitation and tenants suing landlords helped by no-win, no-fee

19 Mar 2020

It’s easy to forget in the Coronavirus frenzy but from tomorrow, Friday March 20, all tenancies are to become subject to the provisions of the Fitness for Human Habitation Act.

The Act, which applies to England only, came into effect last year but only for new tenancies; from tomorrow it will apply to all tenancies. 

Introduced to ensure agents and landlords maintain proper standards in rental properties, there are now 29 separate categories that all landlords must ensure they comply with, or face penalties that range from compensation and rent repayment through to unlimited fines. 

Tenants can take direct legal action against an agent or landlord, rather than go through Environmental Health, and so the risks for those who are unprepared are high.

Advice to agents has been given by Simon Gerrard, past-president of the NAEA Propertymark and himself an agent at his north London company Martyn Gerrard. 

We’re grateful to Simon for sharing his expertise. Here it is below…

1. Tips for agents:

“Checklists and inventory are simple, but very effective, ways of ensuring compliance with the Homes Act. Before making a property available to rent, landlords would be wise to walk through each room with a checklist in hand, thoroughly reviewing and making a note of any potential breaches of the Act.

“If in doubt, landlords should always ask for help, and there are plenty of experts out there to support them. Consult either a professional body like the National Landlords Association (if you are a member) or a local property expert – at Martyn Gerrard, we’re always happy to assist with any query and have a team of knowledgeable agents that can talk through the specifics of the Act.

“Following a checklist, an inventory is a must. Record the condition of the property in line with each of the 29 categories. Ask yourself: “is damp present?”. Yes or no? You will be left with a clear-cut record of the property’s initial state.

“Then, mid-term inventories are crucial. After a tenant moves in, landlords often forget to schedule and conduct mid-term inventories, which leaves them vulnerable to breaching the Act in the long-run. This inventory allows you to compare the property’s condition throughout the tenancy and clearly map any deterioration. This should be repeated every six months.”

2. Hazards to watch for:

“In my experience, damp is the main category that trips landlords up as there’s a lot of ambiguity around whether condensation is damp. In short, landlords were normally responsible if damp arises, however tenants have historically been responsible for damage caused by condensation. Determining who is responsible is no longer as simple as it used to be. For example, a common issue is bathrooms: if a landlord fails to provide adequate ventilation (like an extractor vent or an open window) and condensation forms as a result of the tenant using the shower, the landlord is still responsible for a breach. The root cause is the landlord’s failure to install ventilation!

“Another issue is water and testing for Legionnaires – landlords are responsible for conducting assessments but it’s difficult to prove whether they’re adequately qualified to do so. Further ambiguity with Legionnaires legislation often confuses landlords but it is their responsibility!

“My advice to landlords who may be unclear as a result of the Act’s ambiguity would be to consult a local property expert – it’s better to be safe than sorry.”

Penalties to avoid:

“The Homes Act has really been introduced to supplement the Landlord and Tenant Act 1985, which has been around for decades! To fill in its loopholes, it has introduced 29 new categories that landlords must monitor and ensure compliance with. It’s an extensive list – even the most well-versed property expert would be forgiven for not being able to recite them all!

“Now tenants can take direct action against an agent or landlord, rather than going through Environmental Health like under the old Act. It’s provided an immediate access route to the courts.

“The penalties of non-compliance remain much the same, including enforcement notices; compensation to the tenant; rent-repayment; and unlimited fines. Naturally every outcome is unique to the individual case but the Act has increased the risk of non-compliance with its extensive roster of compulsory categories. With further prosecution on the cards, and potentially crippling fines, landlords must be thorough and dedicated in their approach to the Homes Act!”

Link to original article

Flurry of new laws and regulations to come, whoever is Prime Minister

28 May 2019

The head of the Property Redress Scheme is urging agents to prepare for yet more regulation and legislation changes likely to be introduced over the rest of 2019.

Sean Hooker – head of redress at the PRS – says: “With so much change and with the increasing risk of being fined or even closed down, agents will need to ensure they have all their ducks in a row. The market is changing and the consumer is becoming more aware of their rights.”

And he adds: “Ultimately the majority of property professionals will comply, make the necessary changes and will embrace the new landscape as part of a trusted and safe sector, providing quality services to their customers.

Hooker says a string of measures have already been introduced this year, including the (Homes) Fitness for Human Habitation Act in March, the mandatory Client Money Protection scheme membership in April and next week’s upcoming ban on letting agent fees to tenants and cap on security and holding deposits.

But there’s more to come – and although Hooker’s comments were made ahead of this week’s political developments at Westminster, these measures are likely to go ahead even if there is a change of Prime Minister.

In the PRS annual report, Hooker predicts that the government will:

  • introduce specific reforms on leasehold later this year, and ban leases on houses;
  • implement a provision in the Estate Agency Act 1979 to ensure all estate agents will require mandatory qualifications, and extend this to letting agents and property managers;
  • introduce regulation to the sector and a code of conduct to govern property professionals;
  • ask the industry to adopt voluntary transparency relating to estate agents referral fees received for recommending other commercial services, otherwise they will look to ban these;
  • look at bringing in other changes to the home buying process;
  • introduce mandatory electrical safety checks on all rental properties and extend the requirement for CO monitors in every property, not only those with solid fuel burners;
  • set up a Housing Complaint Resolution Service, where a consumer can direct their complaint and it will direct them to the appropriate scheme. There will be a common complaints code and increased cooperation and data sharing amongst the schemes;
  • introduce landlord redress to bring landlords in line with agents;
  • set up a New Build Homes Ombudsman for consumers of new, off plan and refurbished buildings. “Again this will be a challenge and there are currently no timescales” says Hooker.

Link to original article

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