Held to Ransom - a case study

In this case study, a landlord, ignorant of his Gas Safety obligations found himself unable to obtain possession of his own property for fear of prosecution

In November 1995, letting agents Vincents & Co Ltd set up a tenancy in a flat in Bracknell by finding tenants and preparing a letting agreement. Vincents & Co had no further involvement with the landlord or the tenants until the landlord contacted them in panic nearly 18 months later.

Over the period, relations between the landlord and his tenants had clearly soured and there were rent arrears. The landlord had decided to seek possession through the courts and issued the tenants with notice of his intentions. The tenants were reluctant to leave and sought legal advice. Whilst seeking advice they were correctly informed that a gas safety check should have been performed by the 31st October 1995 in the first instance and then again within in the following twelve months.

The tenants brought this information to the attention of the landlord and threatened to report him for breach of statutory duty if he continued with the possession proceedings. The landlord hastily contacted a CORGI registered engineer and arranged for the appliances to be checked and serviced. However, the tenants refused to allow access to the property. It was at this point that the landlord went back to the agent.

What should he do ? Why had the agent not informed him of the regulations? He did want the tenants out of the property and he had been genuinely ignorant to the fact that a gas safety check needed to be performed - now that he knew, he was keen to comply but could not gain access and the tenants were holding him to ransom. Could they get away with this ? How could he have known that such a check was required?

This case raises some interesting questions. Firstly, who was responsible for ensuring that the gas safety check was performed ? When the let was initially entered into, the agent was arguably under a duty to inform the landlord of his obligations under the regulations. Secondly, what power does the landlord have to enter the property to perform statutory repairs or safety checks ?

On the first point, we consulted the guidance notes on the regulations produced by the Health and Safety Executive (HSE) but the notes do not address this point. We then called HSE Gas Safety Policy Unit and were told that where the agent provides an introduction service only, the landlord is responsible for compliance with the regulations. Our advice would be to ensure that as part of the agency agreement, these obligations are explained in writing and it is made clear that the landlord is responsible for the statutory checks of the gas appliances.

Regarding the issue of allowing the landlord (or agent where management is carried out) access to carry out the checks, we again consulted the HSE. If the tenancy agreement has a clause allowing the landlord or his agent entry on giving a reasonable amount of notice to the tenant and providing the landlord has retained keys, the landlord has every right to exercise this clause to perform the safety check. If, however, the agreement contains no such clause, the landlord has not retained a copy of the keys or the tenant has changed the locks, the landlord is not lawfully permitted to break into the property.

We obtained a copy of guidance from the Health and Safety Executive (HSE)(1):
"........regulation 35 of the Gas Safety (Installation & Use) Regulations 1994 places a duty on landlords to maintain appliances and installation pipework in a safe condition and to ensure that gas appliances are checked for safety annually. The 1994 Regulations do not give the landlord the right to enter the property without the tenant's permission. Regulation 37 of the 1994 Regulations includes an "exception as to liability" clause for certain regulations and regulation 35 fall into this category. This means that, in cases where a landlord is unable to gain access to a property to carry out a safety check, if it can be shown that he/she took all reasonable steps to obtain access (eg. sending several letters requesting access, informing the tenant of the landlord's legal duty under this regulation) then he/she may not be guilty of an offence. However, if there was an incident, it would be up to a court of law to decide on what were 'reasonable steps''.

In the event, the parties fortunately came to agreement without further action but the episode gave both landlord and agent reason to tighten procedures.

 

References
1. Our thanks to North West Landlord's Association for this additional information.

NB. Some names have been changed.