26 March 2020 | Comment | Article by Rebecca Rees

COVID-19 for Landlords – Balancing Your Obligations

The COVID-19 Coronavirus pandemic presents landlords with many challenges – in particular how to deal with repairs and servicing but also to comply with government guidance/law. We have received a large number of questions from clients wishing to understand their legal obligations during this COVID-19 outbreak. Senior Associate, Rebecca Rees in our Housing Management team answers your frequently asked questions in this ever changing legal landscape.

Q: What happens now with evictions?
 

A: The government have released COVID-19 related guidance which outlined a complete ban on evictions for at least 3 months as well as additional protections for renters. The guidance, however, does not deal with other landlord/tenant issues in these unprecedented COVID-19 times.

Q: What about maintenance obligations? 
 

A: The Government has not yet commented on, or legislated to alter, routine and emergency maintenance obligations. For landlords this means their repairing obligations have not changed under Section 11 of the Landlord and Tenant Act (or the terms of their tenancies). There has so far been no change to the landlord’s statutory obligations, and in particular the obligation to carry out gas and electrical servicing. Whilst on the face of it these obligations are unaltered, the reality is that at the moment nothing is the same. On 23rd March, the Prime Minister announced that people should leave home only for very limited reasons, including to travel to work where “absolutely necessary”. Additionally, trying to work out how to avoid unnecessary human contact, landlords will be grappling with the need to consider the impact on tenants who may be elderly and/or vulnerable to the COVID-19 Coronavirus, and on top of that deal with staff shortages caused by illness or the need to self-isolate.  

Q: How does that impact repair obligations?
 

A: As far as repair obligations are concerned, most tenancies and Section 11, simply require that works are done “within a reasonable time” once a landlord is on notice of a defect. In our view, in the current COVID-19 climate, “reasonable time” has to take into account these Coronavirus pressures. We believe that it is overwhelmingly likely that courts (and regulators) will accept that it will be inevitable that some works cannot proceed or will take longer at this time. Records and good communications will be crucial.

Q: What if a tenant reports a repair?
 

A: If a tenant reports disrepair during this time landlords must still record and log it in the usual way. If for any reason landlords are unable to do this, tenants must be advised how they can report issues. Any works which are required as an emergency will need to be actioned. The landlord will need to identify whether the tenant (or a member of the household) is elderly, vulnerable, self-isolating or symptomatic and will need to decide a sensible course of action, with this in mind. If it is deemed that the risk posed to the tenant (and/or staff or contractors) by visiting is greater than the risk posed by not carrying out the work, then the works should be postponed for a short time. Likewise, if the tenant requests that it is put off, generally such requests should be agreed, unless it is considered unacceptable for the work to be delayed. If the work has to go ahead, extra precautions may be necessary, including the wearing of appropriate protective clothing, distancing, arming staff with sanitizer and cleaning products with advice as to their use and giving tenants appropriate advice.

Q: What shall we do about gas servicing?
 

A: Gas servicing is a little more difficult as timescales and deadlines are clearly laid out and compliance is a key issue for the regulators. However, particularly if a tenant is vulnerable or elderly, the risk of an engineer visiting and passing the virus to them at the current time may well be greater than the risk posed by the servicing being put off for a time (assuming there is no other reason to think that an appliance has developed a fault). Perhaps in time the regulations will be relaxed; we hope so. The only guideline we have at the moment is that the test to be applied is whether the work is “absolutely necessary”.

Q: What will happen with ongoing disrepair claims?
 

A: It depends what stage they have reached. If a case is at protocol-response stage, and an inspection of the property is necessary then in our view there is a good argument that the normal protocol response times should be suspended and non-urgent inspections put on hold. That is of course, subject to the proviso that if there is a suggestion that there is any outstanding work which is urgent, it ought to be progressed. Otherwise, if works are needed, then the same principles as above should be applied. We hope that claimants’ solicitors will understand that defendant landlords may struggle with response times with the current COVID-19 Coronavirus crisis, and refrain from issuing or progressing claims, particularly where a response is impossible because of the need for an inspection. However, where it is possible to respond to a claim, or deal with paper based issues/offers, the deadlines are still in place and ought to be met wherever possible. Our recommendation is that this is all about communication with the claimant’s solicitor, and to be clear with what can and cannot be done at this time. In relation to issued claims, court deadlines still apply. Hearings are still listed, although may be listed by telephone or video. If applications are necessary, we anticipate the courts will be sympathetic. Each case will need to be looked at on a case by case basis. Stay up-to-date with the current court situation in our related blog.

Q: How do we decide what maintenance goes ahead and what doesn’t?
 

A:

  • Gas servicing is difficult. At the moment there are no firm guidelines about whether it should proceed. If there is any reason to think that a boiler poses a risk or there is a potential emergency situation then work should proceed if at all possible. Again, cases involving the elderly, vulnerable, and those who are self-isolating or symptomatic will need to be dealt with carefully. Generally though, does routine gas servicing fall within the category of “absolutely necessary”? We are all so used to it being considered an absolute no-no for a landlord to allow gas servicing to slip that it is difficult to say that it is not, but we are in strange times. Each landlord will need to consult their risk register and consider their policy carefully. If a decision is taken to suspend servicing for now then this should be communicated to tenants, and they should be asked to get in touch if they know there are any issues.
  • Generally though a landlord (and/or its contractors) will need to avoid routine home visits and routine works at this time in order to comply with the Prime Minister’s announcement. This clearly needs to be kept under review.
  • If the work cannot proceed for any of these reasons, record the current situation and reasons on the repairs system for the relevant property. Advise the tenant that the work cannot proceed for the time being and explain why. Ensure that the work is diarised for review. Document the reasons for proceeding/not proceeding with work.
Q: Will we be liable for any delays?
 

A: Landlords need to ensure that tenants’ expectations are managed, and as far as possible the reasons for delaying work should be explained to them. In individual cases, keep records of all communications (good notes of telephone calls and copies of any letters or emails). More broadly, landlords may want to consider whether to distribute a message generally to tenants via a newsletter or an email or letter with a general update on the services which are currently restricted or operating as normal. A pro-active approach to communicating with your tenants will re-assure them in such challenging times and help avoid complaints and problems in the future.

 

If you need help or guidance on your obligations as a landlord or the pressures you are currently facing as a result of the COVID-19 Coronavirus outbreak, please get in touch.

Key Contact

Find out more on our housing management page or contact Bethan Gladwyn on:

t: 029 2267 5569

e: bethan.gladwyn@hughjames.com

 

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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