Disrepair from a (social) distance: Coronavirus Guidance for Landlords and Tenants

07 Apr 2020

The Ministry of Housing, Communities & Local Government has released a Coronavirus (COVID-19) Guidance for Landlords and Tenants.

The non-statutory Guidance addresses issues that landlords may experience when attempting to gain access to a tenant’s property and the application of health and safety obligations in the context of Coronavirus. The full guidance is available here.

This Note will provide landlords with:

  • The key points in relation to the current government advice
  • Guidance on how to implement shielding, strict separation and stringent social distancing whilst complying with your repair and gas safety obligations;
  • Input on the practical implications this will have on your business;
  • Input on how you can keep your tenants safe when dealing with your repairing obligations.

Summary of guidance on property access and health and safety obligations in the context of Coronavirus

Landlords and tenants are encouraged to work together and take a common sense approach to repairs and routine inspections, whilst always following the government advice concerning strict separation.

Tenants are asked to notify landlords as early as possible of any repairs issues so that appropriate action can be taken by you as landlord.

If an urgent risk is identified by a tenant, they are advised to allow access to their property by their landlord.

The guidance for landlords: -

  • Repair obligations have not changed, every effort should be made to keep properties in good repair and free from hazards
  • Planned inspections may be more difficult at this time and enforcement for non-compliance should be reasonable
  • If a property does need to be inspected consider the availability of alternative and/or digital methods such as the use of smartphones or other technology to reduce need for ‘in person’ inspections;
  • Where it is reasonable and safe to do so make every effort to attempt to resolve issues and keep a record of attempts
  • If employees, contractors or tradesperson have to visit a property they should:
    • Remain 2m apart from the occupiers
    • Avoid direct contact
    • Wipe down surfaces
    • Follow cleanliness and hygiene guidance
    • Wear PPE
    • Afford the tenant/occupants of the property the opportunity to move into another room whilst you/your operatives are inspecting any given room.
  • Apply a common sense approach to non-urgent issues;
  • Inspectors or maintenance workers can still visit blocks of flats and multi-occupied properties for essential or urgent work, such as inspecting and testing fire alarms and emergency lighting systems;
  • Urgent health and safety issues are classified as those which affect a tenants’ ability to live safely and maintain their mental and physical health in the property, some examples are provided:
    • Issue with the fabric of a building, such as a roof leaking;
    • Boiler issues which would leave a tenant with no hot water;
    • If a white good is broken so a tenant cannot store food or wash clothes;
    • Security critical issue such as a broken window or external door; and
    • If equipment relied upon by disabled person requires installation or repair.
  • Tenants to be advised that any moves should be delayed unless completely unavoidable;
  • You cannot evict a person for contracting the virus and advice should be given on strict separation in HMO’s as well as following cleanliness and hygiene guidance;
  • A landlord is not obliged to offer alternative accommodation.

Disrepair claims

As to repairs landlords should note:

  • Your repair obligations have not changed;
  • A common sense approach should be taken where non-urgent repairs are reported;
  • Take appropriate action in the face of a serious risk to health and safety;
  • If tradespersons or contractors will not carry out work, document this;
  • Document all correspondence between yourself and contractors, your tenants and their responses.

As advised by the current Guidance - a common sense and pragmatic approach should be taken to all reports of disrepair.

Upon receipt of a letter of claim we recommend:

  • Risk assessing the allegations of disrepair to include the impact of carrying out the repair now as opposed to delaying the repair whilst social distancing measures are in place;
  • Can you, or your operatives, attend the property in person- if you can, and before attending, ask questions of your tenant, such as:
    • Whether anyone in the household has had a cough or temperature in the last 24 hours;
    • Whether the household includes any person who is socially shielding- i.e. they have been identified as particularly at risk of serious illness if they contracted the virus;
    • Whether there is anyone in the household with a serious underlying health condition.

If the answer is “yes” to the above, then it is important to consider whether the repairs can be carried out at a later date to avoid risk to your employees and to the tenant/household. Also consider;

  • Asking your tenant if they have means of video-calling facilities to carry out a digital inspection;
  • Checking your own maintenance and repair records to identify whether the current report of disrepair is “new” or whether this is an ongoing issue that could escalate if repairs are not carried out.

Any attempts to engage tradespersons and/or inspectors whether successful or not, should be recorded.

If possible, disclosure should be dealt with electronically. If staff are absent and not able to collate relevant disclosure because they are self-isolating or unwell document this and we can assist in asking for extensions to the protocol deadline.

In our experience, both internal staff and tenants are reluctant to organise property visits. If this is unavoidable they should follow the guidelines for visiting properties as summarised here.

If a claim has settled and repairs were agreed, again a common sense approach should be taken. Record whether repairs can be safely postponed or, for example, you are experiencing difficulties finding contractors to complete the works during the current climate.

In these unprecedented times we advise following government advice and keeping safe, whilst at the same time doing everything possible to maintain the landlord and tenant relationship and ensuring obligations are met.

Gas and Electrical safety

The Gas Safety (Installation & Use) Regulations 1998 (the Regulations) remain in force. You are still required to:

  1. Carry out your Gas Safety certificate procedures prior to granting a tenancy and a tenant moving in in accordance with the Regulations and Deregulation Act 2015;
  2. Carry out your Energy Performance certification procedures;
  3. Carry out the 12 monthly gas safety inspections/testing during on-going tenancies;
  4. Carry out your cyclical Electrical safety testing.

All certification should be provided by post or electronic means during this time.

A landlord should make every effort to abide by gas and electrical safety regulations. There are provisions within both sets of regulations which say that in the event a landlord cannot comply they must:

  1. Show that they have taken all reasonable steps to comply with their duties to evidence they are not in breach of that duty;
  2. Record all steps taken.

As above - before attending any property make suitable enquiries with your tenants to identify if any members of the household are symptomatic- in which case consider whether you can extend the visit by 2-3 weeks.

Further guidance for landlords, gas safety engineers and inspectors from the HSE is available. If operatives do visit properties they should: -

  • Keep minimum of 2m apart;
  • Wash hands frequently;
  • Wiping down all surfaces;
  • Ensuring operatives are wearing suitable PPE;
  • Inviting tenants to leave whichever room the operative is working in to encourage social distancing

Note the Gas Safe website advises all Gas engineers have suspended routine inspections and will only carry out high risk scenarios – we recommend you document it if this affects you.

It is important that all steps taken, all correspondence with tenants and contractors should be recorded and kept for future reference.

If you are not able to gain access or engage a contractor, document your attempts to do so and all correspondence with your tenants.

Also, keep evidence that the installation appliance or flues were in good condition while you try and attempt to arrange works.

Remember - all properties and access should be considered on a case by case basis. You still have the powers to obtain injunctive relief to compel access - but the courts will expect this to be an absolute last resort in light of the Coronavirus pandemic and not a first line of action. In order to avoid any case escalating to court action, take stock and try to arrange your gas/electrical testing in good time before your current certificate expires - to ensure you can use extensions of time if needed.

Final thoughts…

Of course no guidance can cover every situation and every eventuality – the current landscape for the relationship between landlords and tenants is unprecedented. Key themes are that a pragmatic and common-sense approach is applied on both sides to the resolution of issues. Effective communication between landlord and tenant is crucial.  And as landlord the decision making process and the reasons why a certain approach has been adopted should be contemporaneously documented so that the evidence is there in the event of a dispute.      

A lot of organisations are dealing with volumes of disrepair claims;  an equally common sense approach should be taken in effectively communicating to claimant’s solicitors the difficulties in complying with the standard pre-action protocols and seeking to agree a sensible and workable way forward in the circumstances of each case.

Please contact Collette McCauley, Associate Solicitor, direct line 0151 471 5445 or email collette.mccauley@blmlaw.com for further advice and guidance.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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