This article by David Smith first appeared on LinkedIn. NB These regulations only apply in England.
It is clear that civil servants have been busy behind the scenes during the period of purdah caused by the general election. On top of a range of other announcements, the MHCLG has laid draft regulations for electrical safety standards.
What and who the new regulations will apply to
These regulations emerge from the Housing and Planning Act 2016 which gave the Secretary of State the power to require landlords to carry out checks on their fixed electrical installations.
At the moment these obligations only apply to licensable HMOs. The new obligations will come into force for any new tenancy from 1 July 2020, this will include renewals and will also include assured shorthold tenancies which become statutory periodic after that date.
It should be noted that these regulations are not limited to assured shorthold tenancies and will apply to any tenancy where a person occupies a property as their only or main residence and is paying a rent. That means most residential tenancies other than holiday lettings.
What landlords will have to do
The new regulations impose a duty on all landlords to ensure that their electrical installation complies with the 2018 edition of the IEEE wiring regulations.
This is a big ask as these regulations were a substantial update over the previous edition which were published ten years previously. It is likely that few installations that were not new after the date the 18th edition was published in mid-2018 will comply in full.
There is a further duty on landlords to ensure that a qualified person tests the installation every five years and provides a report.
This test must be conducted before a tenancy commences or before 1 April 2021 if the tenancy is already in place. This is going to create a problem as this means a lot of properties are going to need testing and work done on them in very short order if they are to comply with these regulations.
Landlords must also provide any new tenant with a copy of the inspection report before they occupy the property to which it relates and must also provide the report to any prospective tenant who asks for it within 28 days of a request from that prospective tenant in writing.
In practice, this means that the report will need to be prepared and work done when the property is put on the market.
Local Authority powers
Local authorities can also ask landlords to supply them with copies of the electrical report and this must be done within seven days of the request. They can also send remedial notices to landlords who are in breach of their duties.
These can be urgent notices if the situation is serious and that allows for work to be commenced immediately. Otherwise the local authority must serve a notice within 21 days of becoming aware of the need to serve a notice.
The landlord has 21 days to make representations to the local authority from the date of service of the notice or they must do the work within 28 days of the notice being served. If representations are made the local authority has just seven days to consider them and respond either by confirming the notice or withdrawing it.
Where a non-urgent notice is not complied, with the local authority can do the work itself. In any case, where a local authority has to do work itself either on an urgent notice or because the landlord has not complied with a non-urgent notice it can recover its costs. A landlord can appeal to the First-Tier Tribunal against the costs recovery within 21 days of being served with a recovery notice.
As well as remedial action local authorities may issue a civil penalty to any landlord who has not complied with its duties. These can be for any sum up to a maximum of £30,000. This follows a similar process to other civil penalty schemes with an initial intention notice, 28 days for representations to be made, and a final decision notice. There is then 28 days to appeal to the First-Tier Tribunal.
What about letting agents?
Interestingly, there is nothing in the process which allows a landlord to place the blame on their agent if they were relying on an agent to deal with this matter for them and the regulations do not appear to have any penalties which can be levied against agents.
This leaves landlords at considerable risk from unscrupulous or poorly organised agents.
Local authorities will also be put under considerable pressure by this. Giving them only seven days to respond to representations will make it difficult to comply and the way the regulations are worded it could be argued that a remedial notice is invalidated if the seven-day timeline is not met.
These regulations will mean new responsibilities for the private rented sector and for its enforcers and very little time in which to get organised to carry them out.