Project Restart for Lettings Agents?

From Housing Barrister and Deputy District Judge Robert Brown

Introduction

Like many sectors, the lettings industry has been in almost complete shutdown for the last seven weeks or so. It now appears that the Government wants to get the sector moving again. I thought it might be helpful to discuss the current position.

Background

As everyone must know by now, the Prime Minister announced in a televised address on Monday 23 March what has become known as the “lockdown”. As he said, he gave the British people “a very simple instruction – you must stay at home”.

That instruction was given legal effect in England by The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

What was restricted?

• Regulation 6 provided that no person could leave the place where they were living without a reasonable excuse. (This was subsequently changed to be “no person may leave or be outside of the place where they are living without reasonable excuse” (emphasis added)).
• Regulation 6(2) set out a non-exhaustive list of reasonable excuses. One of these was “the need … to move house where reasonably necessary” (reg.6(2)(l)).
• Regulation 7 prohibited gatherings of two or more people in a public place, but an exception was made where it was “reasonably necessary … to facilitate a house move”.

Guidance issued by the Ministry of Housing, Communities and Local Government at the time said that “Home buyers and renters should, where possible, delay moving to a new house while measures are in place to fight coronavirus (COVID- 19)” and that “if you have already exchanged contracts and the property is currently occupied then all parties should work together to agree a delay or another way to resolve this matter”.

It was fairly clear that viewings of properties for sale or rent were discouraged and that access to properties should only be required for “serious and urgent issues”.

What has changed?

On 10 May, the Prime Minister returned to the airwaves to give a heavily-trailed speech on the road out of lockdown and lifting some of the restrictions.

In that speech, he announced that some restrictions would be lifted from Wednesday, i.e. 13 May, “to encourage people to take more and even unlimited amounts of outdoor exercise”. People were also “actively encouraged to go to work”. Nothing specific was said about moving home or letting and estate agents.

It was, therefore, a bit of surprise, to me at least), when the new regulations were published on 12 May.

Those new regulations are The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020. Those Regulations amend the earlier regulations by substituting in a new reg.6(2)(l), so that a reasonable excuse now includes the need

to undertake any of the following activities in connection with the purchase, sale, letting or rental of a residential property—

(i) visiting estate or letting agents, developer sales offices or show homes;

(ii) viewing residential properties to look for a property to buy or rent;

(iii) preparing a residential property to move in;

(iv) moving home;

(v) visiting a residential property to undertake any activities required for the rental or sale of that property

These are some big changes for letting agents.

I have seen some suggestion that some in the industry were given some forewarning of this in the last couple of weeks but any discussions have not made their way into press reports in the same way that proposals for reopening schools or restarting competitive sports have.

How will this work?

The MHCLG guidance has been recently updated and can be found here.

It is not an insubstantial document, running to over 4,800 words. A summary is unlikely to do it justice, and letting agents are well-advised to read all of it (and the further guidance referred to within this document) before restarting their businesses.

A few headline points can, however, be pulled out.

• Virtual viewings are being encouraged. Agents must, however, take to ensure that this does not mean that some flaw or undesirable feature of the property is concealed from prospective tenants just because they cannot look around freely.
• Where physical viewings are to take place, the minimum number of people necessary can be involved, social distancing guidelines should be followed, and lots of washing and cleaning is very strongly encouraged. Open house viewings should not take place.
• Viewings should not take place in properties where tenants are symptomatic or self-isolating, or where they are clinically extremely vulnerable or are shielding.
• Repairs and safety checks should take place during the void period in between the previous tenant moving out and the new tenant moving in. If that is not possible (and it is hard to see why it would ever be impossible) then measures must be in place to minimise physical contact.
• Letting agents and landlords “should take steps to ensure any properties are prepared ready for new tenants, this may include cleaning to minimise any potential spread of the virus”.

It is probably obvious that this “does not represent a return to normality”.

It is also worth stressing, as the guidance does, that it may still “become necessary to pause all home moves for a short period of time to manage the spread of the coronavirus”.

Robert Brown, Selborne Chambers