Path set for new implied term that electrical safety standards are met

On 16 October 2019, while we were all looking in another direction, The Housing and Planning Act 2016 (Commencement No. 11) Regulations 2019 were passed bringing sections 122 and 123 of the Housing and Planning Act 2016 into force from 25 October 2019.

Sections 122 and 123 were introduced by Baroness Hayter of Kentish Town in the House of Lords during the passage of the Housing and Planning Bill. The proposals were supported by the Local Government Association, Electrical Safety First, the Chief Fire Officers Association, Shelter, Crisis, the London Fire Brigade, and British Gas before being accepted by the Government.

These sections allow the Secretary of State, by regulations (yet to be published), to impose duties on private landlords to ensure that safety standards are met in respect of either or both the installations for supply of electricity and any fixtures, fittings or appliances provided by the landlord.

The definition of a “private landlord” in s.122(6) is this: “private landlord” means a landlord who is not within section 80(1) of the Housing Act 1985 (the landlord condition for secure tenancies). The provisions therefore apply both to private landlords and most private registered providers of accommodation, but not to local authority tenants.

Section 123(1) says this: Regulations under section 122 may provide for covenants to be implied into a tenancy. This means that, potentially, an implied covenant relating to electrical safety could be inserted to all tenancy agreements except for secure tenancy agreements. This is an odd, but obviously deliberate, distinction by Parliament.

Section 123(3) suggests that a breach of such an implied covenant would result in a financial penalty. Does this hint at a fine, such as already exists under the Deregulation Act 2014, relating to the failure by a private landlord to deal properly with a tenancy deposit? If so, to whom will it be paid? Reading ahead to section 123(4) will such a penalty may be partially or exclusively paid into the Consolidated Fund (this is the main bank account of the government, apparently). In this case, a defaulting landlord may well face two heads of damage: a fine paid to government and damages for breach of implied covenant to the tenant.

These sections of the Housing and Planning Act 2016 are entirely permissive in their current form. On the publication of the Secretary of State’s regulations it will be extremely important for both private and social landlords to quickly understand and get to grips with the exact provisions, in order to avoid the penalties which are being proposed.

Written By Elizabeth England

23rd Oct 2019