Coronavirus: guidance for landlords, tenants and local authorities

30.03.2020

The Ministry of Housing, Communities and Local Government has issued three guidance documents in light of the coronavirus crisis.

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Issued on 28 March 2020, they are:

  • Guidance for landlords and tenants.
  • Technical guidance on eviction notices, and
  • Guidance for local government.

They're available as pdfs. The guidance is not statutory but 'advisory', and applies to England.

I've attempted to summarise some of the main points below.

Guidance for landlords and tenants

The guidance makes some basic points which housing advisors will already be aware of, eg:

  • The importance of early conversations between landlords and tenants if there's a possibility that rent might not be paid, to enable both parties to agree a way forward.
  • Sources of financial assistance and advice.

The extension of notice periods and stay on possession proceedings is detailed. It's suggested landlords should not issue possession notices or apply for possession unless there's 'a very good reason to do so'.

Points of information include:

  • How mortgage payment 'holidays' operate (i.e. interest continues to be accrued).
  • Landlords are not required to lower or waive rent.
  • A pre-action protocol applying to private landlords will be introduced, to encourage landlords and tenants to work together to agree an affordable arrears repayment plan.
  • Occupation fees paid by 'property guardians' count as housing costs for benefit purposes.
  • Certain licences are not 'protected by the Coronavirus Act 2020'.

Advisors clearly have a crucial role in clarifying occupiers' status and in communicating this to landlords where appropriate. The distinction between licences that are excluded and those attracting the basic protection of a court order is crucial.

At the risk of getting on my soapbox, the current crisis does bring into sharp relief the failure of some councils to ensure staff are adequately trained on landlord and tenant law. The variety of ways in which people occupy their homes need careful consideration and advisors need to successfully navigate the complex rules concerning security of tenure.

I've lost count of the number of times housing managers have told me their training budget is inadequate. While council budgets have undoubtedly been strained in recent years, training on tenure is a core activity.

Close liaison with legal departments and local housing solicitors is likely to be essential during the current crisis.

Property access

The emphasis is on health and safety:

...it's vital that local authorities, landlords and tenants work together to keep rented properties safe.

But a pragmatic approach is needed:

It has never been more important that landlords and tenants take a pragmatic, common-sense approach to resolving issues. Tenants should let their landlords know early if there is a problem and landlords should take appropriate action.

It is stated that:

  • Current restrictions may prevent routine inspections.
  • Landlords should be reassured that they'll not be unfairly penalised because of COVID-19 restrictions.
  • However, occupiers in properties with Category 1 hazards should still be 'supported' by the council.
  • Coronavirus restrictions are not a reason to allow dangerous conditions to persist (see 3.1).
  • Landlords should refer to separate guidance on visiting properties to undertake works.
  • Landlords should keep records of their efforts to resolve issues raised by tenants.
  • Using smartphones may reduce the need for in-person inspections.
  • Occupiers should allow councils, landlords and contractors access to their home to inspect and rectify urgent health and safety issues, where reasonable and safe to do so.
  • Reference should be made to public health guidance on preventing transmission, where an occupier is symptomatic, e.g. by occupiers retreating to a separate room and avoiding direct contact when contractors visit to undertake essential works.

Urgent health and safety issues are those affecting the occupier's ability to:

  • Live safety, or
  • Maintain mental and physical health in the home.

This might include (but is not limited to):

  • Problems with the building's fabric, e.g. leaking roof.
  • A broken boiler, resulting in no heating or hot water.
  • Plumbing issues, resulting in lack of washing or toilet facilities.
  • An inability to wash clothes or store food, due to faulty white goods.
  • Security-critical problems, e.g. broken window or external door.
  • Faulty equipment required by a disabled person.

Inspections and testing of fire alarms and emergency lighting systems can also take place.

If an urgent inspection or works are required but an occupier suspects they may have the virus, they should inform the landlord and sensible precautions should be taken.

Gas and electrical safety

Landlords should make every effort to comply with their regulatory obligations, including gas safety rules and the new electrical safety regulations coming into force on 1 July 2020 (for new tenancies) and 1 April 2021 (for existing tenancies).

In summary the new electrical regulations require landlords to:

  • Ensure electrical installations are inspected and tested by a competent person every five years.
  • Provide a copy of the Electrical Installation Condition Report (EICR) to the tenant and, if requested, the council.
  • Undertake any remedial works required by the EICR.

Landlords should:

  • Keep a record if they're unable to engage a contractor or obtain access to premises.
  • Keep copies of all communications with their tenants and contractors, and
  • Refer to the latest coronavirus-related guidance issued by the HSE in relation to gas safety.

It is stated that landlords who can show they've taken reasonable steps to comply in relation to gas and electrical safety are not in breach of duty. As landlord and tenant specialist David Smith points out this is not, strictly speaking, accurate. Rather, councils and the HSE have discretion not to enforce and prosecute. One would expect this to be the approach where landlords have taken all reasonable steps.

Wise landlords will be documenting every action they take. In particular they should be advised to record any inability to engage a contractor or secure access to premises. Many tenants will understandably be refusing access.

Moves

There's also guidance, at 3.4 to 3.5 and 3.11 on delaying planned moves where possible. Persons with symptoms or who are self-isolating should not move for the time being.

Specific guidance on moving is also available (albeit that it mostly relates to property sales rather than rentals).

HMOs and shared accommodation

The key points here are:

  • "Nobody can be removed from their home because of the virus". This bald statement, while constituting good public health advice, may not accord with the actual position of excluded occupiers.
  • Guidance for those occupying accommodation with persons who may be infected and guidance on cleaning your home should be followed.
  • Landlords are not obliged to provide alternative accommodation for tenants if other residents contract the virus.
  • Those required to vacate should obtain alternative accommodation or contact the local authority.
  • The Government is encouraging councils to take a common-sense and pragmatic approach to enforcement in relation to selective licensing. This includes pausing the introduction of non-mandatory licensing schemes.

Possession & notices

The full title of the 'technical guidance' on notices and possession proceedings is 'Coronavirus Act 2020 and renting - Annex A - technical guidance for landlords on the provisions of the Coronavirus Act 2020'.

After stating that landlords should not commence or continue possession proceedings without a very good reason, the document gives basic guidance on serving the following types of notice:

  • Section 21 notices - assured shorthold tenancies.
  • Section 8 notices - assured tenancies (non-shorthold and shorthold).
  • Section 83 notices - secure tenancies.

There are hyperlinks to the updated notices on the Government's website, following the lengthening of notice periods to three months.

Page 5 list the circumstances in which a landlord of an assured shorthold tenant cannot give a Notice Requiring Possession under section 21 of the Housing Act 1988. At the risk of sounding churlish in the present emergency I wouldn't suggest it's comprehensive, provides the clearest explanation or wholly accurate.

For example, the non-protection of a tenancy deposit will not prevent a section 21 notice being effective only where "the tenancy started after April 2007".

Enforcement

The third document gives guidance for councils on enforcing standards in rented properties during the COVID-19 outbreak.

In light of Coronavirus:

...it may be harder for local authorities to carry out their usual work. Inspecting properties and taking enforcement action may be affected by issues around resources or tenants maintaining strict separation. Landlords may also find it harder to comply with their legal obligations for the same reasons.

Some key points are:

  • All enforcement work should be carried out in line with councils' health and safety policies and procedures, which should be updated in light of the current circumstances in relation to COVID-19.
  • All decisions should be based on an assessment of risk.
  • A decision may be made to de-prioritise lower risk hazards.
  • Legal advice should be obtained if enforcement officers consider they may not be able to comply with legal duties.
  • Enforcement action which is non-urgent might be delayed until restrictions ease.
  • Enforcement notices may be suspended for a period, given the difficulties in undertaking works.
  • Councils should consider suspending all non-urgent and proactive work (where there's no duty to carry it out).
  • Reactive work should be prioritised, e.g. complaints from tenants.
  • Resources should be prioritised to ensure vulnerable tenants and imminent health risks are targeted.
  • Landlords waiting for HMO licences should be informed of potential delays.
  • Councils should consider pausing non-mandatory licensing schemes that are not yet in force.
  • Councils should prioritise protecting vulnerable tenants from unlawful eviction and harassment.

Updating staff

So a lot of information to digest. At a very busy time.

Local authority managers will want to consider how they can effectively cascade information to staff, particularly when many are working from home and at capacity.

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