Who Is Liable When a Certificate Lapses: Landlord or Letting Agent?

Who Is Liable When a Certificate Lapses: Landlord or Letting Agent?

Statutory liability for most compliance certificates sits with the landlord, not the letting agent. Gas safety is the exception: HSE guidance states that where a management contract specifies the agent is responsible, the regulation 36 duties that apply to a landlord apply to the agent. The Renters' Rights Act 2025 adds a further route.

This article is for general information purposes only and does not constitute legal advice. Landlords and letting agents should seek independent legal advice for their specific circumstances. It describes the position in England.

Three questions, not one

"Who is liable" is really three questions, and an agency principal who merges them will reach the wrong answer.

• Statutory liability. Who does the regulation name as the duty holder, and who can a local authority penalise or prosecute?
• Contractual liability. What did the terms of business promise, and who bears the loss between landlord and agent?
• Commercial exposure. What happens through a redress scheme award, a lost instruction, or a professional negligence claim?

An agency can be outside the statutory duty and still lose on the other two. That is the pattern most agency principals are actually worried about, and it is usually the correct thing to worry about.

The general rule: the duty holder is the landlord

Most of the compliance regime names the landlord as the duty holder, and a management agreement does not by itself move that.

• The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 place the inspection, report and remediation duties on the private landlord. The maximum penalty rose to £40,000 from 1 November 2025.
• The Smoke and Carbon Monoxide Alarm (England) Regulations 2015, as amended in 2022, place the alarm duties on the relevant landlord.
• The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 place the minimum standard duty on the landlord.
• Deposit protection under sections 213 to 215 of the Housing Act 2004 is a landlord obligation, although an agent who receives the deposit is commonly the person who actually performs it.

These regulations do not contain an express provision equivalent to the gas position described below. Landlords and agents are advised to treat a management agreement as allocating the work and the cost between them rather than as necessarily transferring the statutory duty, and to take advice where the point matters commercially.

Gas safety is the express exception

Gas safety is the one area where the enforcing regulator states plainly that a contract can move the statutory duty. HSE guidance on who counts as a landlord for these purposes says that the management contract should clearly specify who is responsible for maintenance, gas safety check duties and associated record keeping, and that if the contract specifies that the agent is responsible, the same duties under the Gas Safety (Installation and Use) Regulations 1998 that apply to a landlord apply to the agent. Where the contract is unclear, the duties remain with the landlord.

Three consequences follow.

First, silence favours the landlord. An agency that has never addressed the point in its terms of business has probably not acquired the gas duty, but it has also not documented that it did not.

Second, ambiguity is the worst outcome for both parties, because neither can point to a clear allocation and both will argue the other had it.

Third, a breach of regulation 36 is a criminal matter carrying no fixed penalty cap, which puts it in a different category from the civil penalty regimes elsewhere in this article. An agency that has taken on the gas duty by contract has taken on real exposure, not a paperwork obligation. Gas safety renewal timings are set out separately.

The Renters' Rights Act route to the agent

The Renters' Rights Act 2025 created a direct penalty route to agencies that does not depend on who holds the underlying certificate.

MHCLG's statutory guidance on civil penalties states that penalties for breaches and offences relating to assured tenancy landlord duties may be imposed on any landlord and any person acting or purporting to act on their behalf who is responsible for the breach or offence. Where more than one person is liable for the same breach, a local authority may penalise more than one, or impose a single penalty for which both are jointly and severally liable.

The most direct instance is the prescribed information duty for existing tenants. Under paragraphs 7(2) and 7(3) of Schedule 6 to the Act, a penalty for failing to provide that information may be imposed on the landlord or on a person with whom the landlord has entered into a contract to ensure compliance with the requirement. An agency whose terms of business promise to handle statutory notices has, in substance, entered into exactly that contract.

The written statement of terms under section 16D of the Housing Act 1988 carries a penalty of up to £7,000 with a £4,000 starting point, and it is a document agents almost always produce rather than landlords.

Where the certificate lapse actually costs the agent

In practice, most agency losses from a lapsed certificate do not come from a local authority penalty at all. They come from three other directions.

The pattern in each is identical. The question is not whether the agent held the statutory duty. It is whether the agent did what it said it would do, and whether it can show it. A landlord who has been fined £40,000 for a lapsed EICR is not comforted by being told the duty was theirs all along when the terms of business said the agency handled renewals.

There is also a knock on effect that agencies frequently underestimate. Since Section 21 was abolished, a compliance failure can block the landlord's route to possession, and a tenant defending an arrears claim will examine the whole tenancy file. The defences available to a tenant run through documents an agent usually holds.

What terms of business should actually say

Terms of business are where this question is settled or left open, and vague drafting is the most common failure. Agencies are advised to address five points expressly.

1. Which duties the agency performs. List them by name rather than referring to "compliance" as a category.
2. Which duties the landlord retains. State this explicitly, particularly for anything the agency has decided not to take on.
3. Gas safety, dealt with separately. Given the HSE position, this needs its own clause saying in terms who makes the arrangements for maintenance, safety checks and record keeping.
4. What happens when the landlord refuses or delays. Set out what the agency will do if access is refused, funds are not provided, or instructions are declined, and record it each time.
5. What the agency will not do. Legal advice, HHSRS assessment and possession strategy are common places where an agency drifts into responsibility it never intended.

Well drafted terms do not eliminate exposure. They determine who bears the loss between landlord and agent once a penalty has already been imposed, which is a different and more achievable objective.

The record that resolves it

Whichever way the allocation falls, the dispute is decided on the same evidence: what was due, when it was flagged, what the agent did, and what the landlord said.

An agency that can produce a dated sequence showing the renewal was flagged 60 days out, that the landlord was contacted three times, that access was arranged and refused, and that the position was escalated in writing, is in a defensible position in every one of the three forums above. An agency reconstructing that sequence after a penalty notice arrives is not. The value of the record is not that it proves the agency was right. It is that it moves the argument from recollection to documents.

Certificate tracking with expiry alerts flags a renewal before it lapses, and keeps a dated record of what was in place, when, and across which properties. For agencies, LLCR's Agency plan holds that position at portfolio level with role based team access rather than in individual inboxes.