Q&A: Do the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 apply to agricultural tenancies?

Question

Do the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 (the Electrical Safety Regulations), SI 2020/312 apply to agricultural tenancies (which include a dwelling as part of the holding) and that are protected by the Agricultural Holdings Act 1986? If the Electrical Safety Regulations do apply, is it sufficient for the landlord to require the tenant to carry out any remedial work (ie if electrical installations fall within the contractual repairing obligations of the tenant)?

Answer 

It is assumed that:

• there is an element of residential occupation to the agricultural tenancy, for example a farmhouse or a farm cottage
• the tenancy is a ‘specified tenancy’ which meets the criteria of the Private Rented Sector (England) Regulations 2020 (Electrical Safety Regulations), SI 2020/312, reg 2
• the tenancy is not an ‘Excluded Tenancy’ outlined in the Electrical Safety Regulations, SI 2020/312, Sch 1

References: Private Rented Sector (England) Regulations 2020, SI 2020/312

Electrical Safety Regulations apply to ‘specified tenancies’, which meet the following criteria in the Electrical Safety Regulations, SI 2020/312, reg 2 of:

• it is a tenancy of residential premises in England
• the tenancy grants the tenant the right to occupy all or part of the premises as their only or main residence
• the tenancy provides for payment of rent (whether or not market rent)
• the tenancy does not fall within an exemption as an ‘Excluded Tenancy’ at the Electrical Safety Regulations, SI 2020/312, Sch 1

Therefore, provided the above assumptions are met, the Electrical Safety Regulations apply to agricultural tenancies which are protected by the Agricultural Holdings Act 1986 (AHA 1986) because the Electrical Safety Regulations do not contain any specific exclusion of agricultural tenancies. As this question relates to an AHA 1986 tenancy, this will be an existing specified tenancy (as it is no longer possible to create a new tenancy under AHA 1986) and the Electrical Safety Regulations will apply from 1 April 2021.

The Electrical Safety Regulations require landlords to ensure that the relevant electrical safety standards are met and that electrical installations in residential premises are tested regularly (at intervals of no more than five years) by a qualified person. This responsibility falls directly on the landlord. If farm cottages are sublet, the head tenant (ie the occupier’s immediate landlord) will be the relevant party on whom the obligations fall. As the Electrical Safety Regulations will apply to all existing specified tenancies from 1 April 2021, the Electrical Safety Regulations require the first inspection and testing to be carried out by 1 April 2021.

For further information, see:

• Q&A: Do a landlord’s duties in relation to smoke alarms, carbon monoxide detectors, gas and electrical safety in residential properties also extend to tenancies under the Agricultural Holdings Act 1986 or the Agricultural Tenancies Act 1995 where they include a farmhouse? Where a cottage within such a tenancy has been sublet, would compliance with the obligations apply to the head landlord or the intermediate landlord?
• Practice Note: Landlords' duties—smoke alarms, carbon monoxide detectors, gas and electrical safety

Whether the landlord or tenant should carry out any remedial work depends on the precise wording of the tenancy agreement, which must be reviewed carefully to establish where the repairing obligations lie. The landlord is also responsible for the cost of the inspection prior to the remedial work, unless the tenancy agreement specifically provides otherwise.

If the tenant is responsible for carrying out repairs under a full repairing and insuring tenancy agreement, it is likely the tenant will be responsible for carrying out any remedial work necessary to comply with the Electrical Safety Regulations. However, it is not sufficient for the landlord to simply require the tenant to carry out any necessary remedial work. Once the tenant has carried out the work, the landlord must check the works carried out to ensure they comply with the electrical safety standards and that the relevant certification is in place. The landlord should also retain evidence which shows they have carried out this check.

Therefore, the ultimate obligation of ensuring compliance with the Electrical Safety Regulations falls on the landlord, meaning cooperation between the landlord and tenant will be key. In the first instance, landlords with existing specified tenancies should ensure that the first inspection and testing is carried out by 1 April 2021 (when the new rules will apply to existing specified tenancies). Landlords will want to retain records of their correspondence with tenants regarding electrical safety to produce to the local authority in case there is any delay in carrying out remedial works if, for example, the tenant does not permit access to the landlord to carry out remedial works or the tenant has responsibility under the lease for remedial works and does not undertake the same.

This article was first published on the Lexis Nexis Ask Forum on 5 March 2021 and was written by Emma Preece.