Equality Act 2010: Implications for property law

The majority of the provisions of the Equality Act 2010 (“the Act”) came into force on 1 October 2010. One of the primary purposes of the Act was to consolidate the different strands of discrimination law into one statute. As well as restating the previous discrimination statutes, the Act introduces new duties that will affect property owners and occupiers.

The Act aims to protect people with ‘protected characteristics’. These characteristics include, amongst others, disability, age, sex, sexual orientation and religion. The Act achieves this protection by prohibiting both direct and indirect discrimination, harassment and victimisation that are directed towards people with ‘protected characteristics’.

The provisions relevant to property owners cover the following:

• the disposal of property;
• giving consent to the disposal of property;
• managing property;
• providing a service to the public;
• exercising a public function;
• making reasonable adjustments to assist disabled people; and
• obligations to allow residential tenants to alter a property.

Below we focus on the main considerations which concern property owners:

Disposing of property

A person who is entitled to dispose of a property is prohibited from certain forms of conduct when doing so and this prohibition will apply regardless of the type of property being disposed of. By the term ‘disposal’, the Act includes sales, lettings, assignment, subletting, licences and parting with possession.

Discrimination is most likely to be evident in the terms offered on a disposal or a even a blank refusal to dispose of the property to a particular person. An example would be where a landlord refuses to let a premises to a Muslim tenant solely on the basis of his/her religion.

There are, however, exclusions to this prohibition. Discrimination on the grounds of age, marriage or civil partnership are not prohibited when disposing of a property. Further, short term holiday lets are excluded from the definition of disposal.

Reasonable adjustments to assist people with disability

Reasonable adjustments may need to be made in relation to leasehold and commonhold premises, and common parts where the failure to do so would put a disabled person at a substantial disadvantage. This duty to make reasonable adjustments applies to both landlord and property managers.

The duty to make reasonable adjustments can include the following three requirements:

1. changing how things are done;
2. changing a physical feature; or
3. providing an auxiliary aid.

Requirements 1 and 3

These requirements apply where a premises is let or is to be let and, should the landlord or property manager fail to make a reasonable adjustment, the tenant/occupier with a disability would be placed at a ‘substantial disadvantage’.

This duty has effect in relation to both residential and commercial premises. However, in contrast to the position of service providers, this obligation only comes into effect once a request is made by a tenant/occupier with a disability.

The duty to make reasonable adjustments does not extend to removal or alterations of physical features.

Requirement 2

This requirement to change a physical feature of the property did not exist under previous legislation. Again, this requirement will only apply if a request to make adjustments is received from a disabled tenant/occupier.

This requirement to change the physical features only applies to the common parts of buildings that contain residential units. It doesn’t, therefore, apply to purely commercial buildings.

Common parts are defined as the structure and exterior of the building and the common facilities within or used in connection with the building. Before deciding on whether the adjustment is reasonable the landlord must first consult with those people who will be affected by the alteration. The landlord and tenant must also agree the rights and responsibilities in respect of the work such as which party is to pay the cost of making the changes. The Act states that it is reasonable for a tenant to pay for the works and the costs of reinstatement should the tenant leave the premises.

Practical tips

• Landlords should seek to learn as much about the new law as possible as discrimination can often be unintentional.
• Be aware that whilst the Disability Discrimination Act 1995 has been repealed, its obligations have been codified in the Act with added responsibilities.
• When dealing with a tenant/occupier with a ‘protected characteristic’ ensure every decision/refusal is reasonable and objective and unrelated to the ‘protected characteristic’.
• Review all policies to ensure they are compliant with the Act.
• Seek legal advice where unsure about making decisions regarding a property, as the Act may impact upon those decisions.