As time passes in the midst of the Covid-19 pandemic, life begins inching back to normal. An increasing number of businesses are opening their doors for trade, and people are now able to do more than they were permitted to do some months ago.
During March 2020, we published advice for landlords regarding the restrictions on seeking possession of their properties in the wake of Covid-19. However, from the queries we are currently receiving from landlords, the pressing question now is whether landlords are obliged to take steps to reduce the spread of the virus within their premises.
The vast majority of landlords appear to be rightly conscious that they are doing all they should to discharge their duty to their tenants in order to avoid any future claims against them. This article seeks to provide some clarity on this complex area.
The Government has published non-statutory guidance for both landlords and tenants, which applies to both residential and commercial properties. A copy of the Government guidance can be found here (https://www.gov.uk/government/publications/covid-19-and-renting-guidance-for-landlords-tenants-and-local-authorities).
Residential Premises (Houses in Multiple Occupation)
In relation to residential premises, the Government has sought to provide guidance for those landlords who rent out a House in Multiple Occupation (HMO).
Where there are three or more tenants in a property who make up more than one household with a shared toilet, bathroom or kitchen facility, the property is likely to amount to an HMO. This could include a shared house, private halls of residence for students, a hostel or a number of bedsits on one building.
What are my obligations if a Tenant tests positive for Covid-19?
The Government has made clear that nobody can be removed from their home because of Covid-19 and so, landlords can rest assured that are not obliged, and indeed are not permitted, to remove a tenant from their property who has tested positive for Covid-19.
The Government has further clarified that landlords are not obliged to provide alternative accommodation for tenants if others in the property contract the virus; rather, the tenants themselves would be responsible for their own self-isolation.
What can I do to help minimise the spread of the virus in my HMO?
The Government has suggested that one way landlords can assist in reducing the spread is to close non-essential communal spaces where it would not be possible to maintain social distancing. So, landlords may wish to ensure those small spaces that are shared by more than one household are off limits.
However, it is important to note that non-essential communal spaces do not cover shared kitchens, bathrooms, lavatories and sitting rooms. Shared outdoor spaces, such as communal gardens, may remain open for use by tenants, but tenants should ensure that they are maintaining social distancing.
In addition, the Management of Houses in Multiple Occupation (England) Regulations 2006 state that a manager of an HMO must ensure that the common parts are maintained in good and clean decorative repair, maintained in a safe and wording condition, and kept reasonably clear of obstruction. It would likely be implied from this legislation that landlords are obliged to keep communal areas in good and clean order, and so a proactive landlord may wish to take active steps to limit the spread of the virus, over and above simply shutting off communal areas in their buildings.
Whilst the full fallout from the pandemic remains to be seen, we consider it is entirely possible that tenants who fall ill with the virus may seek to take legal action against their landlord if it can be established that the virus was contracted due to a failure to keep the communal areas clean. However, it would no doubt be incredibly difficult to gather the necessary evidence to be successful with such a claim.
Is there anything else I can do to protect myself and my Tenants during the pandemic?
The British Landlords Association (BLA) suggests that HMO landlords should consider an action plan, and we agree that this would be sensible. Examples of the practical steps that could be taken as part of your action plan include:-
- Displaying a poster in a prominent position where all visitors and tenants can see it, coming both in and out of the building. The poster should contain the latest information from the NHS regarding the control of infection.
- Displaying a notice showing what safety precautions are in place at the HMO, with details of a name and telephone number as a point of contact to discuss any concerns. The poster should contain information, or perhaps a map if appropriate, to show where the hand washing and sanitising facilities are.
- With the agreement of tenants in a small HMO, creating a rota to clean the property, including the cleaning of door handles and communal areas. If the HMO contains more than four separate individuals, or at least one of the tenants is not co-operative with a suggested plan, the landlord should be mindful that a rota may not be feasible. The landlord should instead consider engaging the services of a cleaner to clean the communal areas.
So far, we have focused on HMOs, but what about those larger commercial premises that are leased?
How do my obligations differ from those of a residential landlord?
The Government’s guidance states that, in relation to any building or block with shared spaces and facilities, landlords and/or their managing agents should again try to help by, for example, taking steps to close non-essential indoor communal space where it would not be possible to maintain social distancing.
Such landlords may also wish to adopt a similar kind of action plan to that proposed by the BLA above, particularly when the terms of the lease are likely to dictate that a landlord will be responsible for the cleanliness and upkeep of the common parts of the building.
Do I need to check the terms of my Lease?
Whilst a commercial landlord has no specific health and safety laws to follow in respect of Covid-19, which they would in fact be obliged to do for diseases such as legionella, it is safe to presume that the virus is a biological agent falling under the remit of the Control of Substances Hazardous to Health Regulations 2002 (COSHH).
A framework to control risk can be found under COSHH, however, the extent of precautions that a landlord should take will be dependent on the terms of the lease. A landlord’s duty extends only to those parts of the premises over which they have control. If, for instance, an entire building is leased to a tenant on a full repairing and insuring basis, it is likely that the tenant themselves will be responsible for ensuring compliance with any health and safety requirements. The terms of a lease are key to understanding what measures a particular landlord should be taking.
Who is responsible for the cost of any additional cleaning services?
If a landlord pays out for the extra cleaning costs at their buildings including, but not limited to, additional cleaning services and hand sanitiser, there is likely to be scope for the landlord to recoup such costs from their tenants. Particularly with commercial leases, there may be an agreed service charge provision that allows landlords to seek reimbursement of costs associated with everyday upkeep to those parts of the building which they retain control.
There is an argument that costs of enhanced cleaning and sanitisation measures as a result of Covid-19 fall outside the scope of everyday upkeep, although landlords may find that they are able to rely on a “catch all” provision in the lease, allowing them to recover costs in line with “good estate management”, for example. Again, it is essential to consider the terms of a specific lease.
At Swinburne Maddison, we appreciate the challenges which landlords are facing as a result of Covid-19 and the complexities involved in ensuring their obligations are met. Our experienced Property Litigation team is well placed to assist landlords in the review of any existing tenancy agreement and commercial leases, and to provide clear, tailored advice regarding any disputes that arise.