“Watt” now?

17 July, 2020

So much has, quite rightly, been going on in relation to Covid-19 recently that it seems that is all we have been talking about.  The good news is that there is now something else to talk about, although for residential landlords it is another thing to worry about. On 18 March 2020 the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 (“the Regulations”) were made under the Housing and Planning Act 2016, and the Regulations came into force on 1 June 2020.

Specified Tenancies

The Regulations apply to any tenancy of residential premises where it is the tenant’s only or main residence and which provide for payment of rent (“Specified Tenancies”).  This means that all assured tenancies (including assured shorthold tenancies) will be caught under the Regulations, along with most tenancies that are protected under the Rent Act 1977 and contractual tenancies.

There are some tenancies that are excluded from the Regulations and the full list can be found at Schedule 1 of the Regulations.  These tenancies include, but are not limited to, tenancies where a landlord shares occupation, social housing tenancies, long leases and student halls of residence.

The Regulations apply to all new Specified Tenancies from 1 July 2020 and all existing Specified Tenancies from 1 April 2021.

Requirements

The aim of the Regulations is to keep tenants safe by ensuring electrical safety standards in private rented properties.  The Regulations oblige landlords to carry out tests and comply with the 18th edition of the “Wiring Regulations”, British Standard.  Landlords must make sure that electrical installations are inspected and tested by a qualified person before the Specified Tenancy commences, or before 1 April 2021 if the Specified Tenancy is continuing, and that an Electrical Installation Condition Report (EICR) is obtained.  The electrical installations then need to be tested every 5 years or earlier if the EICR requires.  If remedial work or further investigation is required, landlords must carry this out within a reasonable period, or as specified in the EICR.  Mere improvement works do not need to be carried out under the Regulations, however it is considered best practice to do so.

Once an inspection is carried out, the landlord must provide a copy of the EICR to:

  • each existing tenant living in the property within 28 days of the inspection;
  • the local authority if requested within 7 days of the request; and
  • any new tenant before the tenant occupies the property (and to any prospective new tenant who requests the report in writing, within 28 days of receiving such a request).

Enforcement

Local authorities will have the power to enforce the Regulations and can impose civil penalties up to a maximum of £30,000 if a landlord is in breach of its duties and can also serve a remedial notice where there are reasonable grounds to believe a landlord is in breach of the Regulations.  The landlord must take reasonable action to comply with the notice or make representations to dispute that notice within 21 days of receipt.  A landlord will not be in breach of its duty under the Regulations if it can show it has taken all reasonable steps in an attempt to comply.  For example, it specifies that if a tenant denies the landlord entry to carry out the inspections, then the landlord will not be in breach of the Regulations.  This is a welcome specification as usually landlords are faced with the conundrum of whether to spend time and money applying to the court for permission to access a property, or to risk a penalty for not complying with an obligation.

A local authority can arrange and carry out remedial action on the landlord’s behalf and recover the cost of that remedial action if the landlord has failed to take remedial action or urgent remedial action is necessary.

Whist this is another box to tick for residential landlords, the good news for them is that the Regulations do not fall under the prescribed requirements that must be complied with before serving a notice pursuant to section 21 of the Housing Act 1988, so failure to comply will not preclude a landlord from obtaining possession of its property.  Nevertheless, landlords should take the Regulations seriously due to the possible real life implications of failure to comply and the high financial penalty that can be imposed for failure to comply under the Regulations.

It would be sensible for landlords to keep all EICRs safe and readily available in case a local authority requests them and where a tenant does not allow access to a property for inspection, a landlord should keep a record of all correspondence with that tenant and make every effort to obtain access whilst still preserving the tenant’s right to quiet enjoyment of the property.