In June updated guidance was issued, and withdrawn. This was because the guidance contradicted itself. However it has raised an issue that is worth exploring and to do this we need to go back to the legislation, not the guidance.
The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 are the relevant piece of legislation. In regulation 1 it says they come into force for "new specified tenancies" from the 1 July. So far so good and for all existing specified tenancies from the 1 April 2021.
Regulation 2 gives us the definition of a "new specified tenancy" and this is any tenancy granted after the regs came into force. The regs came into force on the 1 June 2020. This creates a small anomaly that tenancies starting after the 1 June have to have a check by 1 July.
Reading further regulation 3(1)(c) says that "new specified tenancies" have to have a check before the tenancies commences.
We therefore have three elements and it would be possible to match two of them but not all three. It would be possible to have "new specified tenancies" (commenced from the 1 June) and requiring an electrical safety check by the 1 July, but then you cannot also require the check before they commenced. If read to mean that they apply to any new tenancy granted after 1 July, the it is quote possible for the check to be done before the tenancy commences. It is not clear how all three requirements can be met for tenancies granted from 1 June. Although originally it was believed these tenancies would not require any check till April 2021, readers may want to choose the cautious route and get one done now to make sure they are covered.
Therefore the reason the guidance has a problem expressing the requirements of the legislation is that the requirements in the legislation are pretty impossible to reconcile with themselves. Although the Government have reverted to the original guidance which is very clear that it applies to tenancies signed after 1 July, the NRLA state that the government have confirmed to them that they intend it to apply to tenancies signed from the 1 June and those tenancies had till 1 July to comply. Comply is an interesting word as, as explained above, this still leaves you in breach of regulation 3 as this requires the check done before the tenancy, not afterwards! If this is the government view we would have expected them to update the guidance. Don' be fooled by the "signed" word as the legislation talks about "granted" and this clearly covers statutory periodic tenancies arising after the legislation came in even though nothing is signed. Agents will have to decide which interpretation they want to follow but as all properties will need such a check why not get t done sooner rather than later.
The TFP tenancy agreement as provided does not go statutory periodic so this last point is not a problem for our tenancy agreement subscribers.
There is also some confusion about checks done before 1 June 2020. The 18th edition came into force in January 2019 but was available from June 2018 (hence why it s BS7671:2018). However, the 18th edition does refer back to work done under the previous edition and says this is acceptable unless it is a significant safety issue, this is why the guidance says that a check done in the last five years is acceptable unless the previous report said another check was needed in less than 5 years. In respect of new builds, the installer has to make sure it complies to the 18th edition and will produce a certificate to say that it complies, needed to get building regulations sign off. Therefore the building regulations sign off is a report confirming it meets the 18th edition with no faults.