Most laws, even bad ones, are passed by politicians with the best of intentions, but some then become subject to the law of unintended consequences.
Since its inception, the Scottish Parliament has been periodically introducing various forms of legislation to enhance the safety of tenants who rent their homes privately.
If it results in just a handful of properties with safety issues, that is still too many
Needless to say, I have found most private landlords to be decent individuals who might want to argue the toss with a tenant over what is the difference between damage to a sofa or carpet or simple “wear and tear”; but they would never compromise on the personal safety of their occupiers.
Still, it’s best to have this enshrined in law rather leave it to individual consciences. Consequently, letting agencies, landlords, and any financial backer with a vested interest in a buy-to-let property have all generally welcomed legislation that has, for example, made regular safety checks on gas and electrical equipment and interior walls and ceilings compulsory. It is also seen by reputable letting agencies as one more means of separating those prepared to provide a fully-professional service from the dilettante and the downright dishonest.
However, many of us are now arguing that the government is going several streets too far with a key aspect of the Letting Agent Code of Practice, expected to be implemented at the end of January next year. This is the part requiring agents to become responsible for safety in properties owned by landlords on whose behalf they provide a management service.
Effectively, this means that if a letting agency detects a safety issue in a property it manages, say relating to wiring or ceiling plasterwork, both the agency and the landlord would be legally liable for ensuring the necessary repairs were carried out.
This is a big shift in responsibility and the consequences are not hard to discern – i.e. when a landlord begins to drag his feet or simply refuses to sanction (and pay for) any safety work outright then the agency will have no alternative but to end its association with the landlord.
So, problem solved, at least for the agent, you might think. However, my concern is that in cases where an agent withdraws, the landlord will then “go underground” and take on the responsibility for future lettings, with any potential tenant unaware of safety problems with the property.
As already stated, most bona fide landlords are diligent about safety issues, but some of them do experience cash-flow problems from time to time and there is the risk that even they will be tempted to delay sanctioning necessary repairs or hope that if they ignore the problem it will go away. I am not saying this is likely to happen on any grand scale — but even if it results in just a handful of properties with safety issues, that is still a handful too many.
My hope is that Holyrood will be prepared to address these concerns and revise the code before it becomes operational. If implemented in its current form and some landlords decide to operate “under the radar” as a result, then far from making tenants safer, the code could lead to some of them being put in more danger.
This latest code forms part of a wider framework for letting agents, which was contained within a previous act, passed in 2014. Section two of the new code, under the heading of “overarching standards of practice”, sets out no less than 13 good conduct requirements relating to honesty, transparency and clarity, and to which a letting agency is expected to adhere.
Any agency that adopts these principles in practice is unlikely, therefore, to continue to act for a landlord who turns out to be ambivalent about safety matters.
Which begs the question: quite apart from the potential for unintended consequences, what exactly does the government expect to achieve by making agents responsible for something beyond their control?
• David Alexander is managing director of DJ Alexander