Coronavirus – the dos and don’ts for lettings agents

It has often been said in the last few weeks that these are extraordinary times. We have been bombarded with civil service guidance, a new 359 page Act of Parliament and Health Protection Regulations. The legislation, which, through necessity, has had to be produced very quickly, is fairly clear but the interpretation of the legislation, and the guidance, can be read in such a way as to justify many situations. It has to be said that producing this sheer volume of guidance, covering many elements that impact on an agents’ usual daily activities, in such a short period of time will have been a huge civil service undertaking and they have been working every available hour in order to achieve this. The balancing of the ‘lockdown’ regulations and the subsequent wide-ranging guidance was never going to be straightforward and consequently many of us, as agents, are still somewhat confused about what we can and cannot do to keep our business running and to facilitate the moves some people may need to make or some who simply wish to make. This article seeks to help clarify some common questions.

We will try to look at the core client facing functions in our letting agency work to see what is possible and importantly what is not. This article looks at the rules applying in England, though similar rules apply in other areas.

The Legislation
There are two pieces of legislation we need to be aware of: The Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 and the Coronavirus Act 2020.

Section 81 of the Act refers to Schedule 29 which deals with the increase in the notice period to three months for all notices under section 8 and section 21 of the Housing Act 1988. The remainder of the Act does not specifically relate to letting but does give powers to authorities to take action in so many aspects of our lives from school closures to statutory sick pay that will either directly or indirectly affect us and our ability to carry on working.

The Health Protection Regulations mentioned above dictate severe restrictions on what we can and cannot do. Regulation 6(1) says ‘during the emergency period, no person may leave the place where they are living without reasonable excuse’. Regulation 6(2) gives the ‘reasonable excuses’. Some of them, amongst others, we will be familiar with; to obtain basic necessities and medical supplies; to take exercise alone or with other members of their household; ‘to travel to work…………………………where it is not reasonably possible for that person to work, or to provide those services from the place where they are living’. Regulation 6(2)(l) says ‘to move house where reasonably necessary’.

Regulation 7 restricts gatherings of more than two people except, amongst others, to where the gathering is essential for work purposes and where reasonably necessary to facilitate a house move, to provide emergency assistance and to fulfil a legal obligation.

The Government does not want us to leave home and go to others homes unless it is reasonably necessary and therefore the navigation through these restrictions and excuses is a challenge. The tricky bit for agents is that some elements of their work can be done from home (arranging gas safety checks for example), whilst others need a physical presence at a location (taking an inventory). The guidance is clear, work from home where you can but go to work and work in a social distancing compliant manner if you can’t work from home. This is balancing the health and economic needs of the country.

Letting appraisals
The regulations do not say that we cannot market a property for let, just that to move house has to be reasonably necessary. One could probably argue that facilitating a house move for a retired nurse returning to the NHS to assist in the current crisis is reasonably necessary. But it would be difficult to argue that a prospective tenant simply wanting some outside space would be viewed the same way.

Many of the properties in our portfolio do not strictly require us to carry out a physical appraisal; we already know the property and have recent photos. We can deal with these from home. There are very few properties being bought for ‘buy to let’ purposes and current owner occupiers would also have to have the ‘reasonably necessary’ excuse to move at this time. In reality it is difficult to imagine many potential landlords wanting to market their property and move currently unless they could establish it were reasonably necessary and then the prospective tenant would also have to demonstrate that their move was reasonably necessary too.

With one eye on the end of lockdown and the restarting of the market then when we get landlord enquiries then we can carry out a virtual appraisal in readiness. The landlord can send photos; we have Google Maps (other apps are available) and portal history to assist us. We can send all the pre-marketing information, sample tenancy agreements and Terms of Business for the landlord to consider in readiness for the easing of restrictions.

Having said this arguably you may not be able to appraise an empty property from home. Consequently you could attend, as a lone appraisal of the empty property would comply with social distancing rules and would be work that cannot be done from home.

Viewings
There is no ‘14 day cooling off period’ for transactions relating to the transfer of land so, in most cases, a prospective tenant will want to view a property before they commit to renting.
Now an agent could reasonably argue whilst they may be able to offer virtual viewings they cannot do the physical viewing from their home. The agent can therefore argue that their journey is reasonably necessary. The prospective tenant though cannot claim that their journey is necessary unless they can show the move is “reasonably necessary” as required in the law, like our retired nurse returning to the NHS. If this were the case then it goes without saying that prior thought would need to be given as to how to carry out that viewing whilst ensuring that the ‘social distancing rules are adhered to.

As with the appraisals virtual viewings could be a way of reducing contact and then a physical viewing need only take place on the final property to ‘rubber stamp’ it. This could prepare the ground for moves once the lockdown is lifted.

Tenancy starts
As we should not be arranging new tenancies that are not reasonably necessary then we should have fewer pending lets the further we get into the lockdown. The guidance has suggested that, where possible, transactions should be delayed. In many cases where there are no contractual obligations and where the move is not reasonably necessary this should be achieved. Not moving unless “reasonably necessary” is not guidance, it is a legal requirement of the Health Protection Regulations. Where though there is a contractual obligation and the parties cannot agree to delay, then the continuation of the transaction will be ‘reasonably necessary’ in order to avoid a breach of contract. Completing the transaction can be done via electronic means although the actual move though is going to be tricky. Removal firms are currently shut. One of the reasons is that social distancing cannot be achieved when carrying the furniture or appliances as well as, of course, that people should not be moving home so why should they be open when they can save money and furlough the staff?

There are many questions about how a ‘chain move’ could be done safely i.e. the current tenant has to vacate in order for the new tenant to move in. The medical experts advise that the virus can survive on some surfaces for up to 72 hours. Therefore, to avoid a risk of contamination additional precautions would be needed for those providing quotes or doing inventories to ensure they do not touch contaminated surfaces and leave or pick up an infection. New tenants should be advised to thoroughly clean the property at move in to minimise the risk of infection. Normal household cleaners are adequate. Of course this is all subject to the current tenant not falling ill and having to self-isolate or simply refusing to move. You can see how complex this all becomes.

Of course where the property is already vacant then there are fewer obstacles and you should be able to complete the letting process remotely for our retired nurse returning to the NHS. The rent, tenancy deposit and documents can be dealt with electronically and the keys posted or otherwise delivered safely although the move should still be completed alone or with members of the same household.

Check-ins
On the basis that the retired nurse has been able to move into the property then a physical visit to the property to carry out a check in should minimise contact. The tenant could sign the inventory and schedule of condition and append a list of comments with photographic evidence. This can then be checked once the restrictions are eased. One point that cannot be avoided is checking the smoke and carbon monoxide alarms on the start date. This is in the law and has not been relaxed in the current situation. However, it would not be beyond the wit of man to go to the property and use a four foot bamboo pole to press the alarm on the ceiling and leave the property without hardly touching anything in the property, minimising the cross contamination risk.

Maintenance and repairs
Only essential repairs and maintenance are allowed and only if they can be done in accordance with the social distancing rules and as long as someone is not self-isolating or shielding (shielding is where the most vulnerable are staying inside for 12 weeks). Emergency repairs that pose a direct risk to members of the household would be permissible, for example, a gas leak. It is therefore important that tenants are made aware of what is essential and how they can report the issues to you.

The landlord’s repairing obligations have not changed and compliance with the Gas Safety Regulations is still a legal requirement. There will of course be issues such as the tenant not permitting access or contractors refusing to attend but in the main essential repairs and maintenance can be carried out safely in accordance with the guidelines. The most recent guidance issued on 7 April 2020 entitled ‘Social distancing in the workplace during coronavirus (COVID-19): sector guidance, emphasises that this can be carried out and the safe method of doing so.

Where access is refused then the advice is to ensure that you keep a contemporaneous log of your efforts and attempts to secure access to protect you in case of a later claim or possible prosecution. If the usual contractor is either unwell or refusing to attend then it will be necessary to find an alternative contractor.

Periodic visits
Physical periodic visits are not likely to be deemed as essential. Alternative and innovative ways of carrying out periodic visits are being employed such as virtual visits. This may be a change that is carried forward beyond this crisis especially if we will be running our businesses with fewer members of staff.

Check-outs
A check-out cannot be done from home and whoever is engaged to perform the check-out should be able to claim that the journey is reasonably necessary. The tenant will want their deposit and it is therefore important to check whether the deposit can be returned or whether an agreement over deductions or even adjudication is required. The earlier comments concerning the virus remaining active for up to 72 hours on some surfaces apply.

Conclusion
Over the last three weeks we have all developed an understanding that some of our work, in fact quite a lot of work, can be carried out remotely and that this knowledge could be used in the future to streamline our businesses as necessary. Notwithstanding this, our business is a people business and ultimately we want to meet prospective landlords and tenants. We want to know and understand the people with whom we may establish what could be a long-term business relationship.

In the immediate future we must comply with the law and the spirit of the law to protect those around us including, landlords, tenants, employees, contractors, ourselves and of course the NHS. As the restrictions are eased so equally will some of the restrictions around our core functions. As this becomes apparent we will need to reassess what we can and cannot do.