Change of Contract for a Protected Tenant

by Readers Question

18:52 PM, 5th May 2015
About 4 years ago

Change of Contract for a Protected Tenant

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Change of Contract for a Protected Tenant

I was recently advised by the local Private Sector Housing Enforcement Officer that, because of “The Housing Health and Safety Rating System (England) Regulations 2005”, I have to fit fixed heating to a flat that is under an old Protected Tenancy where I don’t get a fair and proper rent.

The flat has open fires which met the requirements of the original contract and I am saying that if they want me to fit fixed heating they must enter into a new contract.

The Council are reluctant do this because, by entering into a new contract it would mean I get a fair and proper market rent and not the reduced rent of a protected tenancy.

My argument is that they can’t change the contract requirements without entering into a new contract.

I asked them to show me where it says that contract law is overruled by the “The Housing Health and Safety Rating System (England) Regulations 2005”.

Their Solicitor has responded saying “The contractual tenancy agreement between the Landlord and Tenant does not take precedence over the Act or the Regulations”.

But, the way I see it, this does not mean that the Act or Regulations takes precedence over the Tenancy Agreement.

Does anyone have any thoughts on this.

It could be a good way of forcing the councils into new contracts and therefore abolish the old protected tenancies.

Regards,
Stephenprotected



Comments

wayne carson

12:44 PM, 6th May 2015
About 4 years ago

Unfortunately an act of law does trump civil contract. You have a duty of care to tenants regardless of how much money you are getting. I would strongly suggest that you speak to a specialist housing lawyer on this matter and not a forum. Protected tenancies are a dying anachronism from the bad old days.
they are a powerful entity do not mess with the enforcement team. If they say you need to do something then my advice is get on and do it. Unless there are some blatant reasons for doing so you will be stuck with this tenant and I'm not even sure a new AST will remove your original obligations or their protections.
Seek professional advice.

Paul Franklin

13:45 PM, 6th May 2015
About 4 years ago

"I don’t get a fair and proper rent" you say but in fact that's exactly what you should get. A rent officer will determine what the 'fair rent' is and that is how much the protected tenant will have to pay. The fact it is a protected tenant means that he/she would have been there for at least 18 years so this should not be news to you.

HHSRS came into force with the Housing Act 2004, it is designed to ensure that properties are safe for tenants to live in. I.e. the "health and safety" rating of the property. If you don't do the works required, the council may do them in default and charge you and/or may take you to court and you will likley recieve a fine.

Just because your tenant pays a fair (lower then 'market rent') rent, it doesn't mean that they don't have a right to live in a property that's not fit for habitation. In fact, seeing as they've obviously lived there for so long I guess one could argue that they should have even more right.

Equally , you would still be required to ensure the property was safe if your tenant/s were in rent arrears for example. The rent/contract has no effect on your obligation to ensure the property is safe.

P.s. you can't just get them to sign a new AST, it has to be on a special form to switch it to an AST and it must be the tenant that wants to do it (and why would they want to do that when they have a protected tenancy?!).

Puzzler

13:04 PM, 9th May 2015
About 4 years ago

It does mean exactly that, that the Act and HSE Regulations do take precedence as your solicitor has said. They are enshrined in statute. Failure to comply is a criminal offence. Your TA is just a contract under civil law. Why would you disagree? It may not be what you want to hear but you have been correctly advised.

Neil Robb

20:32 PM, 9th May 2015
About 4 years ago

Once the work is done you can the ask for a rent assessment to be carried out. If your tenant is on benefits see what grants are available. I have had several heating systems put in and they have not cost me a penny.

If the property is improved the rent should be improved I think locally it cost about £90.00 to get the rent reassessed.


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