Is it a legal requirement or just a risky business?

Almost every landlord and letting agent, would wriggle and writhe uncomfortably to respond honestly to this question. "Have you ever failed to comply with regulations?" Most would acknowledge that they have neglected to comply in some way.  

An additional property to our portfolio involved a questionable electric certificate.  Ironically, at this time, our staff member was training a new member of staff about compliance, and what risks to look out for.  Upon checking the new property for compliance, our beady eyed compliance staff, uncovered what purported to be a compliant certificate, but was in fact a failure certificate. When requesting a more recent certificate from the former agent, the previous agent confirmed that, although the certificate was a failure, the failed items had subsequently been rectified!  Not relying on this verbal statement, we engaged an electrician to confirm compliance. The result was an abysmal failure. Only after spending a further four figure sum, did the property finally comply.  

In a separate case, a housing inspector advised that a landlord proudly presented a gas safety certificate - which was in fact a failure - the landlord failed to read it, seriously believing he had diligently carried out his duty.  

I neither judge the above agent nor the landlord, but I do value learning from mistakes made by others if it helps me to avoid the same fate.  Rather, I dread the day that it could be me who misses some minor detail with major consequences and everyone shouts -"sinner".  So let me introduce this article as one who has not yet arrived at perfection.  Indeed, it is my failures which sharpen my focus and resolve, never to repeat my mistakes and this is achieved by actively introducing systems to prevent failure recurring.

It is one thing to make a mistake, having attempted to comply; but quite another to recklessly disregard the need to comply.  Do we need to be cajoled by the law to compel us to do what is right.  Perhaps it depends on how urgent we perceive right to be?  Or, like keeping up with the speeding driver in front - do we follow the crowd with what others consider to be right?  Is failing to do right, even wrong?  For example, many family homes do not have smoke alarms, despite the overwhelming statistical benefits of installation, and clear dangers of neglecting.  Despite not being a legal requirement, we encourage interlinked mains alarms even for family rented homes. How much more, therefore, in HMOs, where it is already legal requirement under the Management of Houses in Multiple Occupation England  (Regulations) 2006 as amended and enacted under the Housing Act 2004.

But is basic compliance enough?  It is a valid defence for a property manager to demonstrate that, all that could reasonably be done, was in fact done. E.g.. battery alarms, as opposed to mains wired alarms, might not meet this test of "reasonable!" following a fatality, the consequence of a defective battery.   Assessing and managing risk is an active concept; not mere minimalistic compliance. The most frequent mantra I hear from landlords is the question, "Is it a legal requirement?" Often the cost involved is so small, as to insult the value of the lives of our tenants, to whom we owe a duty of care. , The media regularly report offenses never perceived offensive, following an incident.  Prior such incident, no risk may have been perceived.  However, following conviction, such offences are suddenly, "glaringly obvious" even to a blind man.  Landlords are stigmatised for failing in their duty of care to their tenants, and lack of due diligence, to their landlord clients by not complying.   This, is also the point at which we become aware, that it is not enough to simply sit back and await our fait!  Landlords can become immune to risks, having bumbled along uneventfully for years, doing the same things they have always done and doing the same as everyone else if not better - so why change? Perhaps, retrospectively, the best person to reply to this last question would be Dr Victoria Martindale. 

It was following landlord Dr. Victoria Martindale's fatal accident that the landlord penning this article decided to become yet more proactive.  Landlords and agents need to be more alert to pre-empt incidents that will probably never happen, but which nevertheless, could occur, with all the attendant consequences, in a range of unlikely circumstances.  Hoping for the best works for most landlords, judging by the relatively few reported cases.  But, for the statistical-landlord and tenant minority, who ultimately become victims, it is regrettable risk taking, without a contingency. Am I suggesting that we can eliminate risks?  Certainly not - we can never do that, much as we try!  However, this partial acceptance of fait does not mean that we should utterly abandon our tenant's safety and our landlord's liberty to unlikely eventualities.

So where do we begin?  We could start by focusing on obvious risks - those statute has deemed sufficiently in need of addressing and with which we are already obliged to comply.  If every landlord did this our tenants would be 90% safer and correspondingly our landlords would be 90% less likely to receive a conviction for lack of due diligence or dereliction of duty.

Some problems only manifest retrospectively, following discovery that something was defective.  A landlord can then expect to be asked to evince that he did all that could reasonably be expected, to avoid the defect giving rise to the incident.  A valid defence might include providing certification or evidence of safety at a given point in time within say the preceding 12 months. Dr. Victoria Martindale diligently instructed a gas engineer, who properly labelled the boiler, "Dangerous do not use!" So far she has done nothing wrong.  The tenant, knowing the dangers, ignored his landlord representative's red prohibition notice, on the boiler affixed by the gas safety engineer and indulged in his own risky strategy.  He wilfully and recklessly reconnected the dangerous boiler... before dying from carbon monoxide poisoning and intoxicating two others, who miraculously survived!  Had he lived the reckless tenant would have been prosecuted by both his landlord and Health and Safety officials.  But, with no one left to prosecute, someone must be liable, and - of course - you guessed, the owner landlady received a suspended prison sentence. Without going into the ironic justification - a generous dose of judicial policy was dispensed to the doctor.  
The landlady had a duty of care to her tenants to do more than disconnect the boiler and then forget about it.  However, had the landlady gone a step further, and fitted a carbon monoxide (CO) alarm, her tenant would likely still be alive! But such fitting is not a legal requirement!  If it were then the landlord would have continued to rent her house with her reputation and liberty intact.

Vindicating this controversial judicial policy, upon reading this case, filled with a sense of urgency I immediately set about fitting CO alarms to all my personal properties.  I am now encouraging current landlord clients to follow suit.  Any new instructions accepted from landlords makes fitting CO alarms a condition of our terms of business. From 2002, CO alarms became a legal requirement in ALL new properties. Just because it was not a requirement for pre 2002 constructed-properties, does not make it unnecessary today. Therefore my advice is to focus on risk, not merely compliance.  And not merely risk to landlord's liberty but primarily for your tenants safety!  Ultimately our consciences will punish us more than any penal sentence were we held responsible for a fatality!