Energy Efficiency Regulations – A Basic Guide For Landlords

Who is affected?

Private landlords.

What is affected?

Domestic and non-domestic property in England and Wales which is legally required to have an Energy Performance Certificate (EPC) which has an EPC rating of band F or G.

When does it take effect?

New tenancies granted, or existing tenancies extended or renewed, on or after 1st April 2018. This affects ALL tenancies in existence on or after 1st April 2020. Tenancies are assured, assured shorthold, regulated and agricultural tenancies.

What needs to be done?

Either:

* If the property is exempt – register an exemption on the national PRS Exemptions Register.

* If the property is not exempt – make improvements to the property to raise the EPC rating band to a minimum of E.

How can a property be exempt?

There are six categories of exemption:

1. Where all the ‘relevant energy efficiency improvements’ for the property have been made (or there are none that can be made) and the property remains sub-standard.

2. Where a recommended measure is not a “relevant energy efficiency improvement” because the cost of purchasing and installing it cannot be wholly financed at no cost to the landlord.

3. Where the relevant energy efficiency improvement is wall insulation and expert advice indicates that the measure is not appropriate for the property due to its potential negative impact on the fabric or structure of the property.

4. Where the relevant energy efficiency improvements may require third party consent before they can be installed in a property and the landlord could not obtain one or more necessary consents.

5. Where the landlord has obtained a report advising that the installation of specific energy efficiency measures would reduce the market value of the property, or the building it forms part of, by more than five per cent.

6. Temporary exemption where a person may have become a landlord suddenly and as such it would be inappropriate or unreasonable for them to be required to comply with the Regulations immediately. This type of exemption will last for six months after the date the person became the landlord and will apply from that date.

The funding that a landlord may rely on for the recommended improvements can be from:

* Green Deal Plan

* Energy Company Obligation or similar scheme

* Funding provided by central government or local authority or third party at no cost to the landlord

* A combination of any of the above.

Exemptions register information requirements

The information required for all exemptions is:

* Address of the property;

* Which exemption is being registered;

* Copy of a valid EPC for the property;

Depending which exemption is being registered determines what additional information is required:

Category 1 as referred to above.

* Details of any energy efficiency improvement recommended for the property in a relevant recommendation report (if separate to the relevant EPC), including a report prepared by a surveyor, or a Green Deal Advice Report.

* Details, including date of installation, of all recommended energy efficiency improvements which have been made at the property in compliance with the Regulations.

* Where there are no improvements to be made, a copy of the relevant report to demonstrate this (if separate to the relevant EPC).

Category 2 as referred to above.

* A description of why the landlord has been unable to obtain adequate ‘no cost’ funding.

* Optionally, the landlord may also provide a copy of any evidence on which the landlord relies to demonstrate that they have been unable to access relevant ‘no cost’ funding to fully cover the cost of installing the recommended improvement or improvements.

Note: Evidence of a landlords inability to access relevant ‘no cost’ funding may include a notification from a Green Deal provider advising that no Green Deal finance is available for a recommended measure, or that funding is only available to partially cover the costs.

Category 3 as referred to above.

* A copy of the written opinion of a relevant expert stating that the property cannot be improved to an EPC E rating because a recommended wall insulation measure would have a negative impact on the property (or the building of which it is a part).

Category 4 as referred to above.

* A copy of any correspondence and/or relevant documentation demonstrating that consent for a relevant energy efficiency measure was required and sought, and that this consent was refused, or was granted subject to a condition that the landlord was not reasonably able to comply with.

Note: Where the party who withheld consent was a tenant, the exemption will only remain valid until that tenant’s tenancy ends. When that tenant leaves the property (or after five years, whichever is soonest) the landlord will need to try again to improve the EPC rating of the property, or register another exemption, if applicable.

Category 5 as referred to above.

* A copy of the report prepared by an independent RICS surveyor that provides evidence that the installation of relevant measures would devalue the property by more than 5%.

Category 6 as referred to above.

* The date on which they became the landlord for the property, and

* the circumstances under which they became the landlord (any of the circumstances set out at section 3.1.3 of this guidance).

Note: Where a person wishes to register an exemption upon recently becoming a landlord, the exemption will last for a period of six months.

What should landlords do now?

1. Check the current energy efficiency rating band on the most recent EPC for the property. If you do not have a copy of the most recent EPC, download a (free) copy from the EPC Register here www.epcregister.com. If you do not have have a copy of the most recent EPC and there is no valid copy in the EPC Register, commission an energy assessment (and EPC) with a Domestic Energy Assessor (DEA) found here https://www.epcregister.com/searchAssessor.html

2. If the property has the minimum EPC rating band of E or above, no further action is required. If the property has an EPC rating band of F or G, contact the Energy Savings Advice Service on 0300 123 1234 for advice and assistance on funding for the energy efficiency improvements recommended in the EPC.

3. If one of the exemptions listed above applies, register an exemption on the national PRS Exemptions Register by sending an e-mail to the BEIS minimum standards team at PRSregisteraccess@beis.gov.uk

If you do register an exemption on the national PRS Exemptions Register you will need to repeat this every 5 years for exemption categories 1-5 and 6 months for exemption category 6 so put a date in your diary.

Further Reading

THE DOMESTIC PRIVATE RENTED PROPERTY MINIMUM STANDARD

THE NON-DOMESTIC PRIVATE RENTED PROPERTY MINIMUM STANDARD

PainSmith Solicitors Energy Performance – funding in detail

PainSmith Solicitors Energy Performance – funding in detail continued

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Landlords guide to serving notices – Part 2 – deemed date and time of service

There are several elements that affect the validity of a notice – the form, the content, the method of service and the deemed date and time of service.


In my previous article (here) I considered the method of service and in this article I look at the deemed date and time of service. The deemed date and time of service is the point at which the recipient can be assumed to have received the notice regardless of whether or not they have actually received it. The deemed date and time of service is most important for time sensitive notices which have to be served by a particular date.


As with the previous article I consider contractual and statutory provisions for deemed date and time of service. If you don’t have time to read the full article skip to the Summary section.


Contractual Provisions


To make the notice provisions workable it is common to include provisions deeming the date and time a notice is received if it is sent by a particular method. However, it is important to ensure that provisions must be appropriate and realistic: for example, they should not deem receipt earlier than the notice could in reality be expected to arrive.


The parties will generally agree that notices cannot be deemed to be served on a non business day. This means that care needs to be taken where a notice is required to be given no later than a date which is a Saturday, Sunday or Bank Holiday: the notice must be served in time to ensure that it is deemed delivered no later than the last business day before this.


For notices sent via post care needs to be taken as to whether the notice being returned undelivered will prevent the operation of the deemed service(1). If the parties intend that a notice should be deemed served even where it is returned undelivered it is advisable to include wording such as “…deemed served on the third working day after posting whether it is received or not” should be used.


Example notice provisions deeming service


If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:

(i) if delivered personally, at the time of delivery; or

(iii) if sent by commercial courier, on the date and at the time of signature of the courier’s delivery receipt; or

(iii) if sent by pre-paid first-class post or Royal Mail Special Delivery or Signed For (registered letter or recorded delivery) [9.00 am] on the [second] Business Day after posting whether it is received or not, provided that it is not returned undelivered; or

(iv) if sent by email, at the time of sending whether it is received or not, provided that the confirmatory copy is not returned undelivered.


Statutory Provisions


Law of Property Act 1925, section 196


…notice …service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.


Deemed served at the time the letter would ordinarily be delivered means that service is deemed to take place on a presumed date, when the notice would have been delivered in the ordinary course of business. This is the first day on which the postman attempts to deliver the notice, regardless of whether anyone is available to receive it(2).


Even if the letter is never received service is still presumed to have taken place, provided that the notice is not returned undelivered(3).


Where a notice is sent by post it is sufficient that it is delivered during the last day on which the notice must be given, even though outside of business hours(4).


The Landlord and Tenant Act 1927, section 23 does not cover deemed date and time of service and as such, we have to rely on case law for guidance on this and the most recent case law takes a generous approach from the perspective of the giver of the notice. Where the notice is sent by Special or Recorded Delivery, the date of service is the date on which the notice is entrusted to postal service(5).. It doesn’t matter if the notice is not, in fact, received or even if it is returned undelivered; service will still be deemed to have occurred(6).


Notice is not the same as knowledge


In Blunden v. Frogmore Investments Ltd [2002] the tenant disputed the validity of the notice. The tenant gave evidence that he had been away from home at the time, and, on his return had found a communication from the post office that it held a recorded delivery item. However, by the time the tenant became aware of this the recorded delivery items had been returned to the landlord’s solicitor as undelivered. The tenant also stated that he had not seen the notice on the premises because he was forbidden to go near them due to the dangerous nature of the buildings. The judge dismissed the tenant’s claim on the ground that there had been good service of the notices. The tenant appealed.


The Court of Appeal unanimously agreed that the landlord had validly served the notices pursuant to section 23 of the Landlord and Tenant Act 1927. They held that section 23 of the 1927 Act permits service by recorded delivery to the tenant’s last-known place of abode, whether or not it is returned by the Post Office.


Robert Walker LJ, in a passage he said underscores the rationale behind this judgement “Notice is not the same as knowledge. But the evident purpose of requiring notice to be given to a particular person is that the contents of the notice should be communicated to, and become known by, that person. Nevertheless, there is no doubt that both statutory and contractual provisions may lead to the position that a valid notice has been given, even though the intended recipient does not know of the notice (and is not at fault in not knowing about it)…. the object of section 23 of the 1927 Act, as incorporated into the 1954 Act is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23 (1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it”.


Interpretation Act 1978, section 7


Where an Act authorises or requires any document to be served by post … the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.


Summary


* Statute has provision for notices sent by post to be deemed served at the time at which the letter would be delivered in the ordinary course of post.
* The most recent case law provides that where the notice is sent by Royal Mail Special Delivery or Signed For (registered letter or recorded delivery), the date of service is the date on which the notice is entrusted to postal service. It doesn’t matter if the notice is not, in fact, received or even if it is returned undelivered; service will still be deemed to have occurred.
* Make sure the Tenancy Agreement includes provisions deeming the date and time a notice is received if it is sent by a particular method.


References


1 Re Thundercrest Ltd [1995] 1 BCLC 117: here the company had an article which provided that where a notice was sent by post, service was deemed to have been effected by properly addressing, pre-paying and posting the notice. However, it was held that the purpose of the provision was to deal with the case where there was uncertainty as to whether a document had been delivered and the article could not be relied upon where it was established that the document had not been delivered.
2 WX Investments Ltd v Begg [2002] EXHC 925 (Ch)
3 R v Westminster Union Assessment Committee, ex p Woodward & Sons [1917] 1 KB 832
4 Papillion v Bernton (1860) 5 H&N 518
5 Beanby Estates v Egg Stores (Stamford Hill) [2003] EWHC 1252; CA Webber (Transport) Ltd v Railtrack plc [2003] EWCA Civ 1167
6 Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573 [2003]


Further Reading


Service of notices by Rebecca Ebdon

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Landlords guide to serving notices – Part 1 – method of service

There are several elements that affect the validity of a notice – the form, the content, the method of service and the deemed date and time of service.


In this article I consider contractual and statutory provisions for method of service. If you don’t have time to read the full article skip to the Summary section.


Contractual Provisions


The method of service used to serve any notice should exactly accord with the relevant clause(s) in the Tenancy Agreement. The clauses within the Tenancy Agreement that cover how any notices should be served should be easy enough for someone with no legal knowledge to understand, otherwise they could be deemed unfair and therefore unenforceable.


The syntax of any contractual provision covering method of service will be similar to the following:


A notice given to a party under or in connection with this lease:


[shall] or [may] be:

(i) delivered personally; or

(ii) sent by commercial courier; or

(iii) sent by first-class post or recorded or special delivery; or

(iv) sent by e-Mail [provided that a confirmatory copy is delivered personally , sent by commercial courier or sent by first-class post or recorded or special delivery on the same day]


Mandatory or permissive provisions


It is a good idea to specify the acceptable methods of notice and also to be clear as to whether these methods are mandatory or permissive.


If the methods are mandatory they will be strictly applied and if they are not followed the notice will be invalid: if personal service is required and the notice is sent by post it will be invalid even if it is fact received.


If the methods are permissive, service by another method will not invalidate the notice, provided it is in fact received.


The use of the word “shall” makes these methods mandatory whereas “may” will make them permissive. Other wording can also be used which will achieve a similar effect so the provision should be read and followed carefully to ensure that the notice is not invalidated by sending it using the incorrect method.


Common methods of serving notice


Some of the common methods of giving notice include:


a) Personal delivery: this will include use of a courier or other agent to serve the notice, though these methods can be specified separately.


b) Post: this may include first class post, Special Delivery and Signed For. Special Delivery or Signed For are more preferable to first class post as they provide a record of receipt.


c) E-mail: though e-mail is popular, consideration needs to be given to possibility of non delivery of the notice sent in this way.


Statutory Provisions


Landlord and Tenant Act 1927, section 23


…notice …may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there …


Law of Property Act 1925, section 196


…notice …shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, …or …left …on the land or any house …comprised in the lease …


…notice …shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, …at the aforesaid place of abode or business, office …and if that letter is not returned …undelivered …


There has been plenty of case law that helps with the interpretation of these Acts.


Leaving a notice at a property includes:


* Handing the notice to someone at the property provided that there are reasonable grounds for supposing that the person will pass it on to the recipient if possible(1).


* Leaving it at the furthest place to which a member of the public can go(2).


* Fixing the notice onto the door of the property(3). This is the case even where the property has been so badly damaged that the intended recipient is unlikely to be able to access it, provided that the person giving the notice has acted in good faith. If the notice has been deliberately concealed this will not amount to good service(4).


* Pushing it under the door, even if it is not found for several months(5).


The last known place of abode is the last address you have for the person. It can be a residential or a business address. It is worth noting that where a solicitor has been advised of a change of address, the client may be deemed to have that knowledge regardless of whether or not it has actually been passed on(6).


A registered letter includes both a letter sent by Recorded Delivery(7) and a letter sent by Special Delivery(8). Since 1998, the Special Delivery service has been the only registered service offered by Royal Mail, after the old-style Registered Letter service was discontinued. Signed For is the brand name for the recorded delivery service offered by Royal Mail.


The prescribed methods of service under these statutory provisions are permissive rather than mandatory. This means that, provided the notice actually reaches the intended recipient, it is validly served even though one of the prescribed means of service have not been used(9). However, where a different method is used from those specified it will be necessary to prove that service has taken place. If the intended recipient can prove, on the balance of probabilities, that he did not receive the letter, the notice will not have been served.


Summary


* Statute has provision for notices to be served personally, left at the last known place of abode or sent by post using Royal Mail Special Delivery or Signed For services.
* Commercial courier, first class post and e-mail are acceptable methods of service though if using these methods it will be necessary to prove that service has taken place.
* Make sure the Tenancy Agreement includes provisions for method of service of notices and do what the Tenancy Agreement states when actually services notices.


References


1 Cannon Brewery Co Ltd v Signal Press Ltd (1928) 138 LT 384
2 Trustees of Henry Smith’s Charity v Kyriacou (1990) 22 HLR 66
3 Major v Ward (1847) 5 Hare 598; Cusack-Smith v Gold [1958] 2 All ER 361
4 Blunden v Frogmore Investments Ltd [2002] 29 EG 153
5 Lord Newborough v Jones [1975] Ch 90
6 Arundel Corporation v Khoker [2003] EWCA Civ 1784.
7 Recorded Delivery Service Act 1962, s1(1): any enactment which requires a document to be sent by registered post has effect as if it required or authorised it to be sent by registered post or the recorded delivery service.
8 Successor Postal Services Company Inland Letter Post Scheme 2001, Sch 2 (as amended): any reference to “Registered Post” must be taken as a reference to Special Delivery as this is the brand name used by the Post Office and is the same in all material particulars.
9 Galinski v McHugh (1988) 21 HLR 47


Further Reading


Service of notices by Rebecca Ebdon

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Preparing a property to let – Gardens

In preparing your property to let, we recommend landlords tidy the gardens.


If the tenant is to be held responsible for maintaining the garden, make available the appropriate gardening tools and equipment. Any tools or equipment you do provide must be safe and in full working order and must be supplied with manufacturer’s instructions.


Few tenants are experienced gardeners so if the garden is particularly large, of an elaborate design, contains plants of high monetary or sentimental value or must be maintained to a particular standard we recommend you contract a gardener to maintain the garden on behalf of the tenant and add the cost to the rent.

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Do I need an Energy Performance Certificate (EPC) for my new home?

Yes – for all new homes completed on or after 6 April 2008, the builder is required to provide an EPC to the owner, with evidence shown to Building Control.

When the builder has finished building they will submit a notice to Building Control which includes an energy rating using SAP (Standard Assessment Procedure) to demonstrate the building complies with Building Regulations. By the same date on the notice, the builder must get an EPC from an accredited On Construction Domestic Energy Assessor (OCDEA) give the EPC to the owner of the building and tell Building Control that this has been done.

Building Control will not issue a final completion certificate until they are sure that this has been done.

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Online Tenancy Compliance Check – Health and Safety

Landlords are you compliant with all current health and safety legislation? Use this FREE online tool to check if you are:
Tenancy Compliance Checklist – Part 1 ~ Health and Safety
If you identify any errors or omissions, please let us know and we will get straight on to it.

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Fire safety legislation for landlords – Common Parts of Purpose Built Blocks of Flats

In this second part of the series on fire safety legislation for landlords I look at common parts of purpose built blocks of flats.


The first part of this series looked at fire safety legislation for dwellings (flats and houses) used for rented single household (family) occupation and can be found here.


Fire safety in common parts of purpose built blocks of flats is covered by the following:


Building Regulations 2010 Part B


See – Technical guidance for Part B is contained in Fire safety: Approved Document B.


Application – all dwellings where significant building work is carried out.


Housing Health & Safety Rating System (“HHSRS”)


Fire is included in the 29 hazards covered by the system introduced by Housing Act 2004.


See – Operating Guidance and Guidance for Landlords and Property Related Professionals. Further information on fire standards can be obtained in the LACORS Guidance on fire safety provisions for certain types of existing housing.


Application – all dwellings


The Regulatory Reform (Fire Safety) Order 2005


See – Fire safety in purpose-built blocks of flats.


See – LACORS guidance on fire safety provisions for certain type of existing housing for guidance on common parts of buildings containing flats.


Application – common parts (i.e. the shared areas including shared stairways, landings, kitchens, bathrooms etc.) of dwelling buildings containing in bedsits and flats both converted and purpose built.


If a flat is occupied as bedsits there are two sets of common parts within the building. The first is the shared access route to the flat front door and other is the shared areas within the flat e.g. hallway, shared kitchen, bathroom etc. Both areas would require risk rating.


Does not apply to shared houses let on a joint tenancy.


The guidance contained in this article also applies to converted flats that are not a section 257 HMO (House in Multiple Occupation)

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Fire safety legislation for landlords – Single Household (family) Occupation

In the aftermath of the Grenfell Tower tragedy there has been renewed interest in fire safety. In the coming months and years it seems likely that there will be changes to legislation but what does the law currently say about fire safety in rental property?


In the first of a series of articles I look at fire safety legislation for dwellings (flats and houses) used for rented single household (family) occupation.


Fire safety in this type of dwelling is covered by the following:


Building Regulations 2010 Part B


See – Technical guidance for Part B is contained in Fire safety: Approved Document B.


Application – all dwellings where significant building work is carried out.


Housing Health & Safety Rating System (“HHSRS”)


Fire is included in the 29 hazards covered by the system introduced by Housing Act 2004.


See – Operating Guidance and Guidance for Landlords and Property Related Professionals. Further information on fire standards can be obtained in the LACORS Guidance on fire safety provisions for certain types of existing housing.


Application – all dwellings


The Smoke and Carbon Monoxide Alarm (England) Regulations 2015


See – Smoke and carbon monoxide alarms: explanatory booklet for landlords.


Application – all rented dwellings


Licensing Condition


Basic fire safety conditions including provision of alarms have to be imposed if the premises requires a licence under Housing Act 2004 and Councils have discretion subject to appeal to impose additional fire requirements.


There are 3 types of licence.


• Mandatory Licence – applies to HMOs of 3 or more storeys and occupied by 5 or more persons who occupy as 2 or more households. Applies to all areas of England and Wales.


• Additional Licensing (HMO) – discretionary scheme which a Council may apply by Declaration which can apply to any HMO, other than those requiring Mandatory Licensing. Council has discretion on the extent of the area affected and the type of HMO e.g. could limit to HMOs with only 4 persons, or could apply to all other.


• Selective Licensing – discretionary scheme may apply by Council’s Declaration to any rented dwellings which are not a HMO – family/single households – and may cover all or part of the Councils district.


Application – any premises which requires a Licence under Housing Act 2004.

In the next part of this series I will look at fire safety regulations for common parts of purpose built flats here.

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How to deal with bats in a property

Unlike rodents, wasps and cluster flies, bats are not pests. As population numbers have fallen, all bats and their roosts are protected under The Wildlife and Countryside Act 1981 (as amended) and The Conservation of Habitats and Species Regulations 2010 (as amended). Under these pieces of legislation it is illegal to:


* deliberately capture (or take), injure or kill a bat;
* intentionally, recklessly or deliberately disturb a bat. In relation to the The Wildlife and Countryside Act 1981 (as amended) the offence applies whilst the species is occupying which it uses for shelter or protection; in relation to the Conservation of Habitats Regulations 2010 (as amended) it applies anywhere;
* damage or destroy the breeding or resting place (roost) of a bat;
* possess a bat (alive or dead), or any part of a bat;
* intentionally or recklessly obstruct access to a bat roost;
* sell (or offer for sale) or exchange bats (alive or dead), or parts of bats.


Under the law, a roost is any structure or place used by bats for shelter or protection. Because bats tend to re-use the same roosts year after year, the roost is protected whether or not bats are present. In this context ‘damage’ could include treatment with chemicals found in wood preservatives.


For more information contact the Bat Conservation Trust here

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Can an agent withhold part payment of 6 months rent in advance?

Yes – If the terms of the agency/client agreement allow the agent to retain certain monies received on behalf of the principal (landlord) it is acceptable for the agent to do so consistent with the terms of the agency/client agreement.


If the agency/client agreement does not allow the agent to withhold rent paid in advance then the agent should not do so….


The agency agreement (the contract) is governed by a fiduciary duty which the agent owes to the landlord. A fiduciary duty is a very stringent duty and Bristol and West Building Society v Mothew [1996] EWCA Civ 533 is a leading English fiduciary law that is globally cited for its definition of a fiduciary. In the landmark case Lord Milllett said a fiduciary is someone who is undertaken to act on behalf of another the circumstances of which give rise to a relationship of trust and confidence. As the fiduciary, the agent has the highest duty of care, higher than any contractual duty, because it is a fiduciary duty. The agent must be loyal to the principal, not put his own interest first and not profit from his fiduciary position unless the principal consents. Breach of a fiduciary duty is considered a fundamental breach and would allow the landlord to terminate the contract without notice. Specific examples:


* Agent must not delegate from his office – the agent cannot get someone else to do what he is contracted to do


* Agent cannot accept bribes – e.g. From prospective tenants


* Agent must not make a secret profit – e.g. From contractors employed to undertake work on behalf of the landlord by way of inflated invoices or paying commission to contractors


What does the fiduciary duty have to do with the payment of advance rent? I would suggest that as part of an agents ‘highest duty of care’ they should pay the landlord monies the agent receives on their behalf as soon as possible after the agent receives them minus any agreed deductions. Why would a landlord want to delay receiving money? Why would a landlord want to employ an agent to delay receiving money when they would otherwise receive the money much quicker without an agent?


Finally the fiduciary duty covers secret profits – if an agent withholds the landlords money and and it earns interest, they should pass this on to or declare it to the landlord otherwise it becomes a secret profit and is a fundamental breach of contract.

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