Following this tragedy, it is natural that thoughts turn to the regulations and practices put in place to keep us safe in our homes. Others with more knowledge of council or affordable housing provision can answer for the safety in these properties, but for those in the Private Rented Sector (PRS), the main question is – are landlords, letting agents and the government doing enough to protect private tenants?
Firstly, it is important to highlight the excellent work by the Scottish Government with respect to safety legislation relating to the PRS, which is now much more tightly defined than it is in England and Wales.
The Repairing Standard was included in the Housing (Scotland) Act 2006. This made important improvements in the basic level of repair that all PRS properties must meet.
The requirement to provide a gas safety certificate is long-standing, but the original Repairing Standard was too ambiguous in relation to other safety requirements. The Scottish Government, to their credit, has removed these ambiguities by introducing new statutory guidance on the Repairing Standard over the last 4 years on electrical testing, fire prevention and carbon monoxide (CO). It is now a legal requirement that all PRS homes have 5-yearly Electrical Inspection Condition Reports (EICR), regular portable appliance testing (PAT), suitable CO alarms and mains operated interlinked smoke and heat alarms. This usually means at least 3 alarms in most let flats.
As an agent, taking over property management from self-managing landlords and from other letting agents, it is still common to find that the property only has a battery-operated smoke alarm and a gas safety certificate. Often the landlord is unaware of the new requirements, either because the government or council does not adequately circulate information, or because their agent has failed to tell them. It doesn’t seem unreasonable for landlords using a managing agent to expect their agent to know the law and help them comply with it. That is implicit in the term agent.
This also occurs with tenanted properties that we survey for investors, which commonly have insufficient fire detection and what appear to be unsafe electrical installations. Often this goes along with not meeting other Repairing Standards such as habitability.
So, who is responsible for ensuring that PRS properties meet safety regulations?
There are many letting agents who believe that the landlord is solely responsible for the safety of the property, which may be partly true given the way legislation is written. However, it is letting agents who place tenants in properties, check them in, and usually manage most of the property maintenance, so the agent clearly has a duty of care to the tenants.
To ensure safety in the PRS, it is essential that the Scottish Government and local councils take more responsibility for following up and enforcing essential safety legislation. A widespread campaign must be undertaken to ensure landlords and tenants are aware of the statutory safety requirements. Landlords and agents who provide properties that do not meet these requirements must be identified. Failure to comply should result in the removal of landlord or agent registration.
As an agent working in this sector, it is surprising that there are still letting agents who allow landlords to decide not to have electrical safety checks carried out, or smoke and CO alarms installed, putting tenants at risk to keep landlord clients happy. Our letting agency has always insisted on mains smoke alarms and EICRs, even before it became a specific statutory requirement. This led to some landlords choosing another agent, but our approach and duty of care made it an easy decision for us.
Letting agents have a significant role to play in enforcing safety legislation, but at present many are choosing not to. This will hopefully change, however, as the Scottish Government has introduced legislation to enable more stringent Letting Agent Regulation in the Housing (Scotland) Act 2014. This will require all letting agents not only to register as an agent, but to have suitable training and comply with a new Letting Agent Code of Practice. The Code of Practice comes into effect on 31 January 2018.
The Code of Practice will make it explicit for the first time that agents must ensure any property they manage or advertise for let meets all current statutory safety requirements, and rightly so. Some argued against this extension responsibility to agents, but it is an important step in the regulation of the PRS and will improve professionalism in the sector. This further improves the safety of privately rented property, which we must all agree is essential in the light of recent events.