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Question Title: Furniture regulations
| Question: 97 |
| Our client has asked us to let and manage a house which has several items of furniture which are non-compliant with the furniture regulations (beds, settee etc.). We pointed this out and requested the offending items be removed or replaced. The client consulted the local Trading Standards Dept. who advised that it was legal for her to let with these items present as 'she would not be letting in the course of business'. As a result, we decided to consult the TSO's directly on the matter to clear our position. They have stated that the Regulations do not apply to the agent where the tenancy agreement is directly between the landlord and tenant as it is the landlord who is supplying the furniture and not the agent. This appears to be in direct contradiction of the ruling in Oxfordshire which resulted in the prosecution and fining of Lyttons. We sent a copy of your latest article to the TSOs with our letter so they are aware of the court ruling.
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| Answer: |
| In our opinion, the Trading Standards Officer is not correct when he states that an agent cannot be liable where the tenancy agreement is directly between the landlord and tenant. The advice is probably based on a confusion that has existed since the early DTI guidance; that in general, only where the agent is named and enters into a contract with the tenant will the agent be deemed to be the actual supplier. We believe that this advice is flawed and, following the Lyttons case, has been shown to be incorrect. The DTI advice was based on a fundamental misunderstanding of how most letting agents normally operate. Indeed, in the Lyttons case, the agent followed the normal practice of preparing a contract which was drawn between the landlord and the tenant. The agent was not a named party to the tenancy agreement (the agent merely signed on behalf of the landlord). It is also significant that your TSO's letter concludes that the advice is offered subject to revision and that 'only the courts can interpret legislation with any authority'. The responsibility imposed by the Regulations applies to the actual supplier of furniture if that supplier is acting in the course of business of his. The actual supplier may be either the landlord or the agent; whether or not an agent is a supplier in the context of the legislation will depend on the capacity in which he acts for the landlord. Counsel's opinion has been sought on this very point, and concluded that an agent who finds a tenant, shows the tenant round, explains how things work, prepares the tenancy agreement and subsequently manages the property is probably 'supplying' the furniture within the meaning of the Act. Also, s.46 of the Consumer Protection Act provides that references in the Act to 'supplying goods' shall apply to either 'principal or agent'. It is possible to imagine the situation (which the DTI mistakenly presumed to take place in the majority of lettings) where an agent is employed by a landlord to find a suitable tenant and supply a tenancy agreement to the parties (and takes no further involvement in the letting, either by preparing an inventory, or managing the property or collecting the rent). Counsel's opinion in such a situation was that the agent is not involved with supply of furniture.
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References:
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Pages:
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Hyperlinks:
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Letting Update Journal |
Oct 1998 page 11 |
letting-update-journal.html
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Letting Handbook |
Chapter 8 |
letting-handbook-and-factsheets.html
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Letting Factsheet No 3 |
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factsheet-3
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For more information, discuss on the Forum
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