Not under-regulated but underenforced: the legislation affecting private landlords in England

Introduction

This publication attempts to identify the number of statutory provisions that place an obligation on landlords in England. This list is believed to be correct as at 29 June 2021 but may change.

The list does contain some statutory provisions that affect both Wales and England but we believe it is accurate for England only. Due to devolution, Welsh housing policy is increasingly divergent from England. Particularly once the Renting Homes (Wales) Act comes into force in early 2022. As a result we have chosen to focus on one nation only for this piece.

In addition to the statutory provisions outlined in the document, landlords have various obligations under common law. This document does not cover case law but there are hundreds of cases that landlords need to be aware of when providing a high-quality service to their tenants.

Summary and recommendations

The last decade has seen a significant increase in the legal obligations placed on landlords. Since the start of the coalition Government, there have been 47 new statutory provisions that landlords need to follow to manage their properties.

This will continue to increase. By the time the Building Safety Bill is given royal assent, the number of statutory provisions on private landlords will have risen by 40% in the last decade to 168 pieces of legislation.

Most of these statutory provisions are quite detailed, placing multiple different obligations on private landlords. For example, the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 require landlords to have a valid electrical condition report, provide a copy of this report to tenants and local authorities, and make improvements to the property based on the report.

Given all of this it is not surprising that many landlords feel that the increasing legislative load is difficult to manage effectively, particularly where multiple pieces of legislation overlap. Similarly, many tenants may struggle to identify exactly what their rights are without specialist help.

Local authorities face similar issues. With their enforcement powers spread out across different pieces of legislation it can be difficult to identify the correct method for enforcement; increasing the cost of enforcement and the time it takes to enforce the legislation.

This may be the reason why the rising tide of legislation has not led to an increase in enforcement against the small criminal element. Local authorities have been granted significant powers to enforce new legislation via methods like civil penalties, prosecutions, or improvement notices but they do not appear to use them.

In 2017/18, 89% of local authorities reported issuing no civil penalties; over half of local authorities did not have a civil penalty policy in place at all. This patchy post-code lottery of enforcement is unsatisfactory and will not be improved by adding more regulations that won’t be enforced.

Rather than adding new obligations, the NRLA believes that future developments in PRS legislation should focus on two areas –

• Improving local authority enforcement levels rather than the scope of enforcement. Local authorities already have extensive powers to improve property conditions, but they are not using them.
• Updating older legislation for the modern world. Much of the legislation that underpins landlord and tenant law was written before email and could be updated to allow for easier use of electronic communication. It could also be adapted to reflect how tenants choose to live with friends rather than family for longer by making it easier to replace a joint tenant. The Renting Homes (Wales) Act is already doing this and thought should be given to a similar approach in England.