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The Electrical Safety Dance

On 1 June 2020, we noted here that The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 had a bit of a quirk. The regulations applied to all ‘new specified tenancies’ from 1 July 2020. But a ‘new specified tenancy’ is defined as a tenancy that starts on or after the date the Regs are in force. The Regs are were in force on 1 June 2020. So, we concluded, the regs would apply from 1 July 2020 to all new tenancies starting on or after 1 June 2020.

MHLCG’s previous guidance stated the regs would apply to all new tenancies from 1 July 2020. On 18 June 2020, MHCLG released revised guidance which apparently, although not consistently, stated that the regs would apply from 1 July 2020 to all new tenancies from 1 June 2020. Which is what the regs actually say. However, some parts of the guidance still said new tenancies from 1 July 2020.

This caused a fuss with ARLA. So today, 19 June 2020, MHCLG withdrew the revised guidance and reinstated the original guidance, stating:

We’re grateful to our stakeholders for engaging with the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 and for their help preparing the guidance to these important regulations.We endeavour to make our guidance as useful and as clear as possible. Unfortunately, this was not the case with the recent update so we have reverted these changes and will carefully review the guidance. As before, we’ll work closely with our stakeholders as we ensure this guidance is up to date and useable.

Being clear and consistent is very important, but the re-instated guidance would appear to be wrong on which tenancies will be caught on 1 July 2020. And ARLA appear to think it is all new tenancies from 1 July 2020, but that is not what the Regulations provide.

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

26 Comments

  1. Ian Narbeth

    If MHLCG wants to give clear instructions/guidance, they only need to write clear English and that will be that. People with a modicum of education will understand what they need to do. MHLCG don’t need to “work closely with our stakeholders”. We are not stakeholders. We are subjects in the eyes of the law and liable to be punished for breaching the safety standards. MHLCG could have avoided all the fuss by having the same start date, 1 June or 1 July, it really matters not. Instead they now have an awful mess where the “clarification” has muddied the picture and stated the law incorrectly. Let us hope that not too many landlords are punished for not working this nonsense out. It is just about OK for lawyers such as Giles and I to wade through this legal treacle but heaven help the lay client.

    Reply
  2. Peter Williams

    I have seen occasions before where civil servants wish that their regulations had said something different, and attempt to resolve the point within guidance – which therefore doesn’t reflect what the regulations say but what the authors intended them to say. Perhaps this is another example.

    Reply
  3. Allyson Talbot

    Reading the guidance online today (23/6/2020) I see that the guidance for landlords says the following:

    “3. Which rented properties do the Electrical Safety Regulations apply to?
    The Regulations apply to new tenancies from 1 July 2020 and existing tenancies from 1 April 2020.”

    To existing tenancies from 1/4/2020? Really? This looks like another mix up with the dates.

    https://www.gov.uk/government/publications/electrical-safety-standards-in-the-private-rented-sector-guidance-for-landlords-tenants-and-local-authorities/guide-for-landlords-electrical-safety-standards-in-the-private-rented-sector

    Reply
  4. Jon

    If you have a possession order and the tenant hasn’t abide by the court order to leave must an electrical safety still be done.?

    The question really is that , is a landlord still responsible for a tenant after their date of possession expires?

    Reply
    • Giles Peaker

      Yes. Tenancy continues to date of eviction.

      Reply
  5. Jon

    Hmmm even if a tenant has failed to comply with a court order?isn’t that contempt?

    Reply
    • Giles Peaker

      A possession order doesn’t require a tenant to leave. It enables a landlord to seek a warrant of eviction. The tenancy continues until eviction. This is fairly basic stuff.

      Reply
  6. Jon

    Well apologies for not being as knowledgeable as you

    Reply
    • Giles Peaker

      My apologies, I meant basic as in fundamental – a fundamental bit of landlord and tenant law that every landlord should know.

      Reply
  7. Jon

    Not really. The complexities of law in every area are very difficult for the ordinary man o on the street to get their head around never mind how difficult housing law can be

    As a non professional landlord I would assume if a court gave me possession then my contract with tenant had ended by order of the court. But obviously I’m wrong. As have many one house owning landlords who make up half the market

    Reply
    • Giles Peaker

      This is the thing I don’t understand, the cult of the amateur landlord. It is a business. You are running a business, albeit perhaps a small one. In what other business, however small, would people be excused knowing the fundamentals of the law that affect that business? A small garage owner who thinks finding out about and complying with MOT requirements are just too complicated? The cafe owner who finds food safety and hygiene regulations too hard to get their head around?

      Now I’d be the first to admit that housing law can be insanely complicated – I mean for heaven’s sake, just look at the section 21 flowchart linked to in the top menu. But the fundamentals of what is required to start a tenancy, rights and obligations during the tenancy, and how to end a tenancy and when a tenancy is ended? These are things that every landlord should know, because they are the basics necessary for running their business – no matter how small it is.

      Reply
  8. Jon

    Respectfully have to disagree with your comparison. In the words of the wise old Yoda , truly wonderful, the mind of a child is.. uncluttered( obviously your Yoda ).

    If a judge gives me possession of my property by order of a court of the the land, my uncluttered mind would have to assume the court had ended the contract and if a tenant chooses to stay on then it’s of their own volition.
    The problem with your your comparison is that you don’t have to consult a lawyer at every stage. To conduct an mot the procedure is set and numbered and I don’t need consult a high charging lawyer to get my answer

    The Amatuer landlord being probably just over 50% of the market and so describing a majority as a cult to get over your argument is a bit ridiculous. With such a large percentage, the amateur landlords needs really should be considered more.

    Reply
    • Giles Peaker

      You don’t have to consult a lawyer, high charging or otherwise. You just have to do a bit of basic research. Or join a competent landlord association. Or read the Govt/MHCLG guidance, which is actually quite accurate and clear. The procedure is indeed set and numbered. You just apparently couldn’t be bothered to find it out?

      I consider amateur landlords a lot. Because they are the ones who mess up badly and expensively because they, for some reason best known to themselves but a mystery to me, think they don’t have to know the basics. That is where the lawyers come in.

      Reply
  9. Jon

    Not correct. Nowhere in what you have mentioned will you find a straightforward answer to my original question. Yes you will find the basics
    Let’s go back to your truly ridiculous comparisons. The car mot dude measures your tyres to just just below 1.6 mm. it fails its mot. It’s crystal clear. He doesn’t require a solicitor to clarify it.
    But a landlord. Hmm has he got his property back. Well who knows. There’s might be be another process where he is best advised to get a solicitor and then maybe another process where he really get a solicitor and maybe another one….. I mean, when have you known a mot dude to need a solicitor in completing his duties??

    Reply
    • Giles Peaker

      Well, let us see. Here is Shelter’s advice page (a free source of clear information): https://england.shelter.org.uk/housing_advice/eviction/section_21_eviction/staying_after_a_section_21_notice

      Your tenancy continues if you stay past the end of a section 21 notice until you either:

      leave the property voluntarily

      are evicted through the legal process

      Or here is Citizens advice (again freely available and a good source of information): https://www.citizensadvice.org.uk/housing/renting-privately/during-your-tenancy/if-you-get-a-section-21-notice/

      Your landlord can’t make you leave your home unless they’ve gone to court to get a possession order and a warrant for eviction – this means they can use court bailiffs to evict you. If they try to force you to leave before this, it’s an illegal eviction – contact your nearest Citizens Advice for help to challenge it. (…)
      It’s important that you keep paying your rent until the day your tenancy ends.

      Or here is the NRLA: https://www.nrla.org.uk/resources/ending-your-tenancy

      NRLA shot

      And here is the Gov.uk site: https://www.gov.uk/evicting-tenants/eviction-notices-and-bailiffs

      Which refers repeatedly to ‘evicting your tenants‘ after the possession order.

      That is just a sample on a quick google. It is really quite easy to find out that the tenant remains a tenant until eviction.

      As you apparently know that you need an ESR for all tenancies before – well – today, 1 April 2021, there you are. The answer is clear.

      The possession and eviction process is step by step and clear – notice, possession claim, possession order, warrant of eviction. It is indeed set out in the govt guidance, as well as many, many other places. I’m afraid that your ignorance (or laziness in not finding out) is not an excuse.

      Once again, you are running a business. It is your obligation to find out the relevant law that affects your business.

      (PS, the guide to being an MOT testing station runs to 327 pages – https://www.gov.uk/government/publications/mot-testing-guide – and goes just a little bit beyond tyre tread depth.)

      Reply
  10. Jon

    Shelter

    The judge must make an outright possession order.

    The order will contain a date for possession. This is not the same as an eviction date. But it is the date the court orders you to leave by.

    Which says a judge and court of the land gives the landlord possession. Which is where a normal man on the street would get confused and would need a solicitor.

    The only time a mechanic or chef would need a lawyer is when he gets something wrong. a landlord would would need one in general.

    If you can show me where are mechanic would need one in the process of completing his everyday work??

    But I get your point

    Reply
    • Giles Peaker

      Jon, it is no good relying on ‘the normal man in the street’ (ie, your own ignorance). The normal man in the street is not a landlord, so does not have an obligation to find out the relevant law that affects their business. Which, as we have established, doesn’t need a solicitor – it just needs not being lazy.

      (And yes the mechanic may well need a solicitor n establishing and running an MOT testing centre, have you even had a look at the guidance?)

      You aren’t going anywhere in your replies, you just keep relying on your own failure to find out things that are important for your business.

      Reply
      • Jon

        And you keep relying on your deeply flawed comparison.

        Since about about 50% of landlords own 1 property, most probably inherited family property, I would consider that the man on the street

        Reply
        • Giles Peaker

          Poor diddums. Didn’t do his homework.

  11. Jon

    Very childish. I did my homework and asking a lawyer on the net can be argued as continuing to do my homework.

    I asked a very specific question just out of curiosity as it really doesn’t matter. I’m getting things done correctly I’m getting bailiffs and electrics done

    My question still stands. A court has ordered the tenant to give up the property. I can’t see any thing other than the judge ended the contract.!!!

    Reply
  12. Jon

    And just to reiterate. I was doing things correctly. And I’m sure you are aware all sorts of curve balls are thrown at landlords.

    My situation is that a possession order was given for the 25 th. the tenant convinced me that they will definitely be leaving. The house is up for sale. Then tenants refused to leave after promising to do so. And I had to chase up electricricians on short notice. Which will get done on weds.

    Your arrogance I guess comes from ridiculous elements of the law being on your side!!!!

    Reply
  13. Jon

    And let me re phrase that. As I’m sure your going to jump on it. Maybe not the ridiculousness of the law but the disconcerting arrogance of some towards landlords. And I’m guessing it comes from the iron fist of the law clamped around the balls of landlords
    Thank the lord I’m out of this god foresaken none sense in a few short months with only 13 k of lost rent and legal fees even though they were on benefits!!!!!!

    Reply
    • Giles Peaker

      No, it is the arrogant self-justifications of some – emphasis on *some* – landlords that grates. There are plenty of free or low cost information sources, from landlord bodies to legal advice sites. There is really no excuse for a ‘man in the pub said’ approach. Landlords are running a business and should do so professionally – that means being aware of the relevant law.

      By the way, if you were paying legal fees, couldn’t you have asked your solicitors? I was happy to give you the answer for free (albeit that your first reaction was to argue about it), but if you actually had lawyers involved…

      Reply
  14. Jon

    Not sure how you have kept.. and continue to twist this around to implying I haven’t done my job correctly so for the last, yes I did educate myself. It was a specific question that occurred to me after all was said and done with layers and while I was going about getting eicr. And yes you provided an answer albeit an extremely arrogant one which started this silly argument

    Reply
    • Giles Peaker

      My answer was just “Yes. Tenancy continues to date of eviction.” A simple, clear, answer to your question, not arrogant at all. You then chose to argue with it, which, given that you had asked a specialist lawyer a specific question and got a clear answer, (for free!), might itself be considered a smidgen arrogant.

      I’m not implying you haven’t done your job correctly at all. I am saying, supported by the available evidence, that you hadn’t researched adequately when a tenancy ends – a fairly fundamental part of the relevant law for the business of landlording. This has been clear law since 2008 and the House of Lords decision in Knowsley HT v White (our note here https://nearlylegal.co.uk/2008/12/knowsley-v-white-etc-in-more-detail/ ). Your repeated responses that ‘the man in the street’ couldn’t understand the relevant law suggested that somehow small landlords should have a dispensation from knowing it. Or that the law being complex (and at times it certainly is) was somehow unfair on landlords. (Wouldn’t it also be unfair on tenants, who would have equal if not more difficulty with it?).

      But this is something I’ve heard from a fair few landlords – that somehow not knowing or complying with the relevant law was not their fault because there was such a lot of it, or it was complicated, or went against common sense – and I’m afraid I got snappish. There are many free or low cost sources for such information, including professional associations, so that isn’t an excuse. I just don’t get why someone running a business would not make sure that they were clear about the fundamental law that affects that business – in this instance, the effect of a possession order.

      I am sorry you’ve had a bad time with your last tenancy. Tenants should of course comply with their obligations.

      Reply

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