HMO landlords must ensure they have discharged their duty, in the wake of COVID-19 to their tenants, or risk claims against them.

When the dust has settled, and the fog of Coronavirus no more, we no doubt will take stock of our lives. Some of us, sadly, would have lost loved ones, or at least know someone who has.

Legal and moral duty to their tenant

Problems often arise, out of the ashes from quarters we least expect. Landlords who have HMO’s, need to act now and ensure they have done all they can, to discharge their legal and moral duty, to their tenant.

The common areas of an HMO are in the control of the landlord or the landlord’s agent. A landlord may have a duty to put in place, measures to prevent the spread of COVID-19.

If a carpet in a common area to a stair tread was ripped, landlords would be pro-active to get it fixed. The worn carpet would be an apparent visible danger to one’s safety.

The COVID-19 is even more of a deadly threat than a ripped piece of carpet. Yet some residential and commercial landlords, alike, seem oblivious to the potential risk of a tenant bringing a claim against them. Landlords could potentially expose themselves to litigation.

Duty of care to an HMO tenant

With COVID-19, there does not seem to be the same urgency, even worse, the awareness that a landlord may have liability and a duty of care to a tenant.

Mr Sasha Charles, the CEO of Landlord Advice UK, said: “Is it a landlords responsibility to ensure that the communal areas of HMO’s are kept clean to prevent the spread of Coronavirus?”

First, let’s take a look at the regulations that cover the issue of cleaning communal areas…”

“The Management of Houses in Multiple Occupation (England) Regulations 2006 says about maintaining common parts:”

“(1) The manager must ensure that all common parts of the HMO are—

(a) maintained in good and clean decorative repair.

(b) maintained in a safe and working condition, and

(c) kept reasonably clear from obstruction.”

“So, it clearly states it is the manager’s (i.e. the landlord) responsibility to maintain common parts “in good and clean decorative repair”. It is implied by law, that landlords must keep the communal areas, in good and clean order. This means that even if the contract doesn’t state this, it is nevertheless the landlord’s obligation”.

“Tenants who contract the virus may be able to take action against their landlord, if it could be proven that the virus, was contracted, due to the failure to keep the communal areas clean. Of course, there is the issue of proving this. Which would not be easy; however, this detracts from the point. Landlords could be liable and should ensure, as far as is reasonably possible, that the communal parts of an HMO are cleaned. They should not only comply with their general obligation but prevent the spread of the virus”.

Should landlords be attending HMO’s

“In contrast, landlords, like everyone else, need to comply with government guidance on travelling. Should landlords be attending HMO’s to clean common parts?

What if a tenant was self-isolating? Can a landlord breach their duty of care towards the tenants by visiting the let premises during the coronavirus outbreak contrary to government guidance?”

Delegate duties to clean the HMO common parts

“Therefore, landlords may be able to delegate their duties to clean the common parts to their tenants to prevent the spread of the coronavirus, but the landlords are then in breach of their duties under the 2006 regulations”.

Landlords and tenants need to strike a fair balance

He added: “Landlords and tenants need to strike a fair balance, as to how the cleaning of common parts, are to be dealt with during the coronavirus outbreak,” he said.

Mr Sajjad Ahmad, the CEO of the British Landlords Association, said: “I have spoken to a few HMO landlords, in the last two weeks. The general mood seems to be, in regards to infection control, they are largely leaving it to the tenants to decide, how to manage the situation. This worries me. Tenants do not have control of the common areas, nor does health and safety fall in the lap of the tenants. Generally, it was, it remains the responsibility of landlords”. However, if they delegate, the cleaning to a tenant and pay the tenant for doing it, that may be a way around it as a temporary solution” he said.

HMO landlords should consider an action plan:

1. Display a poster in a prominent position, where all visitors and tenants can see it, coming in, and out, of the building. The poster should contain the latest information, from the NHS on Coronavirus infection control.
2. Display a notice what measures are in place for Coronavirus infection control. The notice should have a name and a telephone number as a point of contact. The poster should contain information or a map if appropriate, to indicate where the sanitising hand washing facilities are.
3. The landlord should consider creating a rota (if a small HMO) with the agreement of the tenants. An action plan to clean the door handles, and all communal areas regularly. Cleaning materials to be paid and provided by the landlord. If the HMO contains more than, say four separate persons, or a disagreeable tenant, the landlord should consider employing a cleaner, as a rota may not work. This can usually be achieved, by using a tenant, and reducing the rent, as a payment to deal with the task.

The crux of the matter is, should a case against a landlord ever be issued, this complex legal issue will ultimately be decided by the courts. Landlords ought not to risk it. The cost to demonstrate a landlord took appropriate action, is nominal, by any calibre of judgement. This may go a long way to ward off a potential claim, in the future.

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Source: British Landlords Association

Author: Marc Attwater

Date: 2nd of April 2002

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