Confusion Over Landlord Electrical Inspections

22nd June 2020 Commercial Litigation

The last week saw the confusion over Electrical Inspection Condition Reports (EICRs) in the Private Rented Sector (PRS) under the new Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 reached new heights.

In summary, these regulations will ultimately require all PRS landlords to obtain a certificate confirming the safety of the fixed wiring installation in their property. If they do not do so then the relevant local authority can fine them and undertake necessary improvements themselves and change them back to the landlord. I have given a more detailed rundown on the regulations here.

The Problem

The problem arises with the introduction of the regulations. The regulations came into force on 1 June 2020 and say they apply from 1 July 2020. However, there is some confusion over which tenancies they apply to from 1 July. The regulations however are very clear. Regulations 1 states that the regulations came into force on 1 June 2020 and that they apply to “new specified tenancies” from 1 July. Regulation 2 defines a “new specified tenancy” as a tenancy or licence which is “granted on or after the coming into force of these Regulations”. What this means is that any tenancy which was granted or renewed on or after 1 June 2020 must have an EICR done for it. However, there is a month’s grace (until 1 July 2020) to get that EICR done.

The Guidance

However, the MHCLG guidance does not have this correct or it is at least seriously misleading. The answer to question 3 which asks which tenancies the new requirements apply to says it applies to new tenancies from 1 July 2020. This is sort of true but does not properly express that it applies to new tenancies granted after 1 June 2020 from 1 July 2020 which is the correct position. It also has a typo in that it then says the new rules apply to existing tenancies from 1 April 2020 whereas the correct statement is that the new rules apply to existing tenancies from 1 April 2021.

The Changes

On 18 June 2020 the MHCLG changed its guidance to correctly state that the new rules apply to tenancies granted after 1 June 2020 as from 1 July. In other words they were seeking to correct it. However, following protests from agent representatives (which were wrong) the MHCLG withdrew the changed guidance on 19 June 2020 and reverted to the previous, wrong, version. However, they now appear to have realised that the 18 June change was in fact right and will presumably now seek to reinstate it.

More Guidance Issues

Quite apart from the above there are other problems with the guidance and the underlying regulations. In relation to remedial work the guidance states that landlords are not in breach of the regulations if they do not comply with a local authority notice requiring remedial works. This is true as far as it goes, but again misses a key detail. Landlords who have not done an original EICR or who do not have a safe electrical installation are in breach of their duties under the regulations and are potentially subject to a fine. There is no defence to this part that a tenant will not permit access and so the landlord is relying on the local authority’s discretion not to penalise them. Naturally, how a local authority chooses to apply that discretion is up to them.

This is very problematic at the moment as, due to concerns about safety, many tenants are reluctant to allow access. In its guidance on Covid the MHLCG is suggesting that local authorities cannot penalise landlords who cannot get EICRs done due to Covid. As the above paragraph makes clear this is simply untrue. A local authority would have to exercise its discretion in this regard. The MHCLG has asked them to make allowances but they are under no obligation to do so and there is no formal defence if a penalty were to be issued.

Comments

The current situation is hugely unsatisfactory. The regulations were rushed in and the confusion over the guidance illustrates that even the MHCLG does not properly understand them. They really must get the guidance right quickly (and it should have been right before) and should probably consider whether this is the right time to be making this change. Naturally, there is a genuine improvement in tenant safety which should be moved forward but leaving it a few months would not really reduce the safety of tenants appreciably and would allow for a more orderly introduction.

Some Q&As

I have been asked a lot about these regulations so I will try to answer a few of the more common questions here.

Does this apply to my tenancy because my tenants (insert favourite reason here)?

Almost certainly yes! This applies to all residential tenancies and licences in which a person or persons occupies the property as a dwelling. Which is most stuff.

Does this mean I need to get the fridge/kettle/toaster etc tested?

No. This is a test of the fixed wiring, not of the appliances. This is not a requirement to have a portable appliance test (PAT).

Does this apply to my tenants who are already in the property?

Not yet. From 1 April 2021 it will do and you will need to have obtained a test by then.

Can the tenants enforce this? Will my s21/s8 notice be invalidated?

No. This is solely enforced by the local authority. It is not a defence to a s21 or s8 notice that you do not have a proper certificate or that you have not met the standard.

Is this going to require lots of work to my property?

That depends. The new standard is higher than previous ones. However, it is a matter of assessment and not meeting the new standard in minor ways should not be an issue. If your property has a modern electrical installation in good repair then it should be ok.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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