Letting agents may be unaware of two particularly important changes in The Property Ombdsman’s revised code, an industry expert has warned.
The changes flagged up by David d’Orton-Gibson are that agents have an obligation to inform the landlord of any commission or fees earned from the tenant using a third-party associate, such as an insurer.
Failure to provide such information could result in such income being claimed by the landlord as their own, says the revised code, which was implemented at the start of this month.
The second major change is that agents are required to obtain expressed consent for access to the property, notwithstanding any notice served as contractually required.
Therefore agents will need evidence of such tenant permission before entering the property, rather than relying on the common tenancy clause of entering with required notice.
D’Orton-Gibson, of Training for Professionals, said it was important for letting agents to note the new requirements, tell staff, and have the evidence to prove compliance should it be required.
All the changes to the updated code can be seen here
Comments (14)
Nuts ….. TPO cannot impose a code that is in conflict with The Housing Act and other statutory regulations. The landlord or representative (agent) is entitled to enter the property once notice has been served in accordance with the tenancy agreement when appropriate to do it. Without the tenants consent is rarely used but is there for when the tenant does not co-operate normally on grounds of safety. If a tenant refuses then the landlord could be liable for neglect of responsibility subject to circumstances, if they follow TPO new rule. This would also apply with HMO regulations, Right to Rent, Criminal activity, sub letting …. the list is long.
I would like to know who the people were who discussed and then recommend implementation.
8f If Access to a property may be is required by you, or an authorised third party on behalf of the landlord (e.g. a surveyor, builder, tradesman etc) for the purpose of viewing the condition, state of repair and/or to fulfil related statutory obligations and/or to carry out repairs. If , and you hold the key but are not able to accompany that person, the occupying tenant must be given provided with the appropriate minimum notice of 24 hours or that prescribed by law, of the appointment, (unless agreed otherwise with the occupying tenant beforehand), except in cases of genuine emergency. Notwithstanding providing the tenant with reasonable notice to access a property, express consent from the tenant to do so should be obtained.
And if it isn’t, then what? So poorly implemented rule change.
See my response to Aj-42 above. to me ‘should’ does not imply ‘must’. I am going to take this up with TPO for further clarification.
The wording does seem unnecessarily difficult. I think we might all benefit from a peared down, more explanatory version, though I think easternagent is on to something with the “should” vs “must”.
PRS it has to be…
Costs less each year and does not have the onerous requirements (other than follow the law)
Just renewed for the second year and it was so easy, no jumping through hoops with TPO which I did for 10 years.
PS I’m not tied to PRS, just sick of the TPO
PPS Should it be ‘the TPO’ or is the ‘the’ surplus to requirements?
It would be nice to know which industry experts TPO consulted to get a balanced view of the workability of the revised CoP before going to print.
I put the scenario – You have a gas safety certificate expiring in one month – you write to the tenant advising the engineer wishes to call on such and such a date and time – you hear nothing – you write again – still nothing – the certificate anniversary date passes – there is now no GSC on the property. Is the landlord now in breach of legislation? Answers on a postcard please….
I strongly suspect that this part of the revised CoP was written in response to an aggrieved tenant who probably didn’t want the landlord or any of his agents coming into the property for whatever reason. I do think the TPO should have widely consulted the industry as to the practicality and potential consequences of the need for express consent to enter before amending the Cop.
As Romain says there is no legal requirement to obtain express consent provided proper notice has been given as per the tenancy agreement. I think TPO should very seriously consider reviewing this clause and removing it form the CoP.
Does it not mean that written consent must be obtained for visits extra to those outlined in the contract? – in which case, GSCs and property visits wouldn’t require it as long as they are in the tenancy agreement?
Just re-read this article: so, despite having signed a contract agreeing to let us in for gas safeties and property visits, we need additional consent?
Clause 8f in the revised CoP, downloadable now from the TPO website, still says that if the agent intends to allow a contractor into the property unaccompanied by that agent, at least 24 hours notice, ‘or that time period allowed for by law, ‘must be given’ to the tenant except in cases of emergency (agent acts as ‘agent of necessity’). The clause has been expanded by TPO to suggest that even if we have given notice consent, (I quote), ‘should be obtained’.
Note the use of the word ‘should’ and not ‘must’ as used earlier in the paragraph. To me ‘must ‘ implies compulsion whereas ‘should’ implies best practice but not essential. I wish our already constantly changing waters were not continually being muddied by such added complications that really could be avoided by proper consultation with those of us who have to operate within there remit.
Thank you for quoting this. We were talking about it in the office yesterday with regard to property inspections and gas contractors, and though I can see the logic, I’m uncertain how to work with tenants who simply don’t respond.
Regarding commissions and fees: This is a principle of the Law of Agency and therefore it already applies to all agents. I am therefore hoping that agents were not unaware that this was the situation.
There is no legal requirement to obtain express consent every time the property is accessed as long as the terms of the tenancy are followed. So why create such artificial restriction?
Interesting…see another requirement (not a change) is for an agent to give to the tenant and guarantor a copy of the specimen tenancy agreement before any fees are due
I cannot imagine many agents would be complying with that either
That’s easily done – we give out a sample agreement with our application paperwork.
Im sure all of those agents that weren’t involved in the consultation will be made made fully awear of such changes, didn’t think there were any legislation left in the tenants favour….still, ‘makes it easier for TPO to enforce even more financial payouts to those poor tenants…