How do public sector landlords tackle the problem of access in respect of gas safety inspections and fire safety risk in leasehold properties?
It a question that continues to be raised by social landlords and although a number of measures have been put in place to assist landlords not enough has been done to prevent the serious tragedies that occurred at Lakanal House, South London and Shirley Towers, Southampton.
It is agreed by the majority of social landlords that action needs to be taken as soon as possible.
Gas safety enforcement
It is well known amongst housing law practitioners that the Gas Safety (Installation & Use) Regulations 1998 apply to landlords that grant periodic tenancies, statutory tenancies, fixed term tenancies and licences to occupy.
The injunction is the most commonly sought enforcement tool should a tenant fail to provide access to his/her landlords. Some landlords will go as far as possession proceedings should there be a history of failure by the tenant to provide access.
Unfortunately this does not apply to leaseholders because the Gas Safety (Installation & Use) Regulations 1998 only apply to tenures of 7 years or under.
So where does this leave the landlord of a mixed tenure block of flats or estate?
Social landlords that own or manage mixed tenure block of flats need to take action to prevent further tragedies in the future. However their difficulties are not limited to the challenging range of property portfolios for example, a single tenant, a leaseholder or a large HMO. The occupiers profile also increases the challenges of the landlord; examples include but are not limited to young working families, the disabled, the elderly and those suffering with mental health issues. As one would expect, the approach taken by the landlord will vary dependant on the tenant and consideration of these variables adds to the already difficult ad challenging jobs of front line housing staff.
As referred to above, enforcement against tenant is well established and social landlords continue to work hard at maintaining high standards.
It is rare for a lease to hold similar covenants as a tenancy in respect of access and we know that the Gas Safety (Installation & Use) Regulations 1998 does not apply.
Many landlords advise their leaseholders that it is their responsibility for the maintenance of all gas appliances and flues to the property and that they are required to have them checked for safety every 12 months. This is not expressed in the lease nor is it a requirement by law. Landlords are then left to assume that all leaseholders comply with these requirements.
Some landlords negotiate competitive prices for their leaseholders to have their gas appliances serviced. Unfortunately such initiatives are not being taken up by leaseholders despite the fact that it can save money, reduce the risk of breakdown and most importantly it can potentially save lives.
If flues and essential pipe work are shared between leaseholders and tenants and are the property of the landlord, checks can be carried out in all properties and therefore access requirements should be stipulated in the lease. Alternatively legislation can assist by way of enforcement. The Access to Neighbouring Land Act 1992 which allows anyone that needs to do works to land they do not own (e.g. leasehold property) which adjoins land that they do own (tenanted property) to apply to the Court for an access order. The Court must make an order if it is satisfied of the following:
- that the works are reasonably necessary for the prevention of the whole or part of the owned land
- that they cannot be carried out, or would be substantially more difficult to carry out, without entry on the land that is not owned
Can the Housing Act 1996 be used as an enforcement tool against leaseholders?
The Housing Act 1996 as amended by the Anti Social Behaviour Act 2003 provides at:
S153 A - Anti social behaviour injunction
1. This section applies to conduct:
1a. which is capable of causing nuisance or annoyance to any person
1b. which directly or indirectly relates to or affects the housing management functions of a relevant l landlord
2. The court on the application of a relevant landlord may grant an injunction (an anti-social behaviour injunction) if each of the following two conditions is satisfied.
3. The first condition is that the person against whom the injunction is sought is engaging, has engaged or threatens to engage in conduct to which this section applies.
4. The second condition is that the conduct is capable of causing nuisance or annoyance to any of the following:
4a. a person with a right (of whatever description) to reside in or occupy housing accommodation owned or managed by the relevant landlord;
4b. a person with a right (of whatever description) to reside in or occupy other housing accommodation in the neighbourhood of housing accommodation mentioned in paragraph 4a
4c. a person engaged in lawful activity in or in the neighbourhood of housing accommodation mentioned in paragraph 4a
4d. a person employed (whether or not by the relevant landlord) in connection with the exercise of the relevant landlord's housing management functions.
5. It is immaterial where conduct to which this section applies occurs.
6. An anti-social behaviour injunction prohibits the person in respect of whom it is granted from engaging in conduct to which this section applies.
Presuming that the failure of a leaseholder to carry out a gas safety inspection is known by the landlord or by any of the persons referred to at paragraph 4 above, and the court can be persuaded to accept that this is capable of causing nuisance or annoyance and in doing so it directly or indirectly affects the housing management function of the "relevant" landlord this may combat the problems faced by social landlords.
Fire safety enforcement
Again this is the leaseholder's responsibility and the Fire Safety Regulations do not apply. If for example, a leaseholder living in block of mixed tenured properties decides to change his/her front door to one that is not fire resistant what can be done?
Application of the Access to Neighbouring Land Act 1992 or the Housing Act 1996 as amended may be stretching things quite a bit to far for this to work for fire safety risk assessments etc.
Can the landlord call upon the assistance of s20 Landlord & Tenant Act 1985?
The Act provides that leaseholders paying variable service charges must be consulted before a landlord carries out qualifying works.
Qualifying works are works on a building or any other premises requiring repair, maintenance or improvement. The inclusion of improvement in the definition of qualifying works does NOT allow a landlord to recover costs for improvements unless a liability for costs of improvements is included in the lease.
Landlords must seek consultation if the works will cost over £250 for any one leaseholder. In the example above - a leaseholder with a non fire resistant door. A landlord may be able to ensure that all occupiers of properties within a mixed tenured block have the same level of protection against fire by carrying out S20 consultation.
Consultation is a costly and time consuming exercise and it may be something that is suggested to leaseholders in an attempt to encourage them to bring the standard of their front doors up to current regulatory standards so that they don't end up paying more should it be done further to consultation.
Note that the above are suggestions ONLY and were not necessarily designed to be used in respect of gas and fire safety but may be effective tools nonetheless.
An alternative solution
A lease may be changed by deed upon mutual agreement buy all parties - Part 4 Landlord & Tenant Act 1987 provides that a landlord may apply to vary an existing lease.
It is strongly recommended that landlords considering such steps seek legal advice as to what the clause will contain in respect of access for gas safety/fire safety. To encourage leaseholders, landlords should consider covering the cost of the exercise.