The most comprehensive review of private sector renting in England was conducted by Julie Rugg and David Rhodes of York University in 2008. Commonly referred to as the ‘Rugg Review’ it made particular reference to the need for ‘light touch’ landlord licensing but what we currentlyhave is that of selective licensing introduced in 2006. An area has to be identified as particularly risky but it can also be designated if it is either one of ‘low housing demand’ or, under s80(6) of the Housing Act 2004:
- The area is experiencing significant and persistent problems caused by anti-social behaviour;
- Some (or all) of the PRS landlords who have let premises in the area are failing to take proper action to combat the problems;
- When combined with other measures taken in the area by the local housing authority or others with the authority, making an area a designated area will lead to a reduction or the elimination of the problem.
It was the London Borough of Newham that decided to expand on this by extending its requirements to cover the whole of the borough. The National Landlords Association raised a number of issues concerning whether licensing a whole borough under the selective licensing framework was actually legal. They also felt it would not make any difference other than to punish good landlords and stated that whilst landlords have limited resources to deal with ASB situations, local authorities do have enough resources at their disposal and should enforce them more vigorously. These resources are:
- ASB Co-ordinators who can make an application to the Court for an Anti-Social Behaviour Order (ASBO) and getting the tenant to sign up to an Acceptable Behaviour Contract (which has all I’ve ever been offered and in only one situation);
- Envirocrime Units who work in tandem with the police dealing with issues such as fly-tipping, graffitti, dog fouling and abandoned cars;
- Environmental Health Officers: Under s80 of the Environmental Protection Act 1990 (summary proceedings for statutory nuisance) EHO’s will take ‘all reasonable’ steps to assess whether noise constitutes a statutory nuisance. If it does (and is likely to reoccur) a noise abatement notice can be served and if it is ignored then the offenders can face court action as well as the confiscation of the equipment if that is what is causing the problem;
- Premise Closure Orders which are requested by the police and resulting in the courts being able to temporarily close any premises (and common areas) associated with serious and ongoing ASB and/or nuisance. This is however a fundamental difference between accreditation and licensing in that the former is purely voluntary but once an area has met the criteria for the adoption of Selective Licencing, landlords must obtain a license.
Nevertheless, the borough continued to licence all private sector landlords.
London Borough of Waltham Forest
The ‘London Borough of Waltham Forest Designation for an Area for Selective Licensing 2014’, didn’t come into force until 1st April 2015, under s80 of the Housing Act 2004 (designation of selective licensing areas), and it required most privately rented homes in the borough to have a property licence.
All it has done though is given us another layer of management because of the failure of the council to effectively use Part 3 s87(6)b) of the Act, which requires the applicant to give copies of the application, or information about it, to particular persons. Waltham Forest has a template of this requirement, the Notification of Private Rented Property Licence (PRPL) Application to Interested Parties which can be found here.
When I contacted Waltham Forest Landlord Licensing to see how many landlords had applied for a licence I was surprised to find out that a number of them had already applied but we had received no notification (as interested parties). I was advised that the reason for us being left out of the loop was that the council rely on the applicant filling in the application properly and correctly. Apparently people miss off these details or supply something completely different.
So, as a result of being left out of the loop I decided to ask some specific questions.
1: What Is The Licensing Time Frame?
On being advised it wasn’t that simple to provide because it depends on how long it takes the officers to gather evidence, the main steps are as follows:
- Letter sent to owner and/or agent advising of the need to licence and given 14 days to reply;
- If no applicition is received, 2nd letter ssent stating that an officer will be visiting the property on a stated date and time and a copy is also sent to the tenant;
- If application is received there are no further steps. If no application is received then visits will continue
- Officer will visit the property again to speak to the tenant for the purpose of gathering evidence to prosecute owner/agent;
- Officer will prepare witness pack to present to legal for prosecution.
2: What Happens If Landlords Are Not ‘Fit And Proper’ To Be Granted A Licence?
Although there is no legal definition of who is a fit and proper person, the authorities must consider whether the person has been convicted of offences involving the following:
- Notifiable sexual offences;
- The practicing of unlawful discrimination;
- The contravention of any housing or landlord and tenant law.
I was advised that in such cases an ‘intention to refuse’ notice would be issued under s88 of the Housing Act 2004 (grant or refusal of licence). It is possible (within the 14 day consultation period) to nominate someone else to be the licence holder and responsible for the property, which one of the landlords did. If an alternative is not nominated, they will not receive a 5 year licence. The license could be varied if there were concerns about the landlord and they would need valid reasons as to why we did not agree with a license being issued. They could potentially issue licenses of 1 year (instead of 5) in order for these issues to be sorted.
3: What If The Licensing Conditions Are Not Being Met?
In situations where the officer finds that the licence conditions are not being met, or that information provided with the application is incorrect, a number of options are available, including:
- The licence holder may be asked to vary the information previously supplied;
- The landlord may be asked to carry out improvement works;
- The council may refer the address to the council’s housing standards team where formal enforcement action might be required;
- Prosecution for non-compliance with the licensing scheme.
4: Can a Licence Be Reduced to a Lesser Term Once Granted?
In terms of carrying out repairs, some landlords on our block are notoriously difficult when it comes to getting repairs carried out so I asked if it were possible to get the original license reduced if this kind of behaviour continued afterwards. I was advised that although it would be the decision of the council to make, it would be unlikely that they would do so.
5: Can An Unlicensed Landlord Demand A Rent Increase?
Whilst I understood that a tenant could appeal against a rent increase, (which must be put in writing giving one months notice) I wanted to know if a rent increase demand would be viewed as null and void where a landlord is operating without a license. The answer was that whilst such a demand could be made without one, it was suggested it would be less enforceable.
EXEMPTIONS AND INCENTIVES
Another problem is that some landords are exempt from the licensing process because they have leased their properties to a local authority for a pre-determined period for them to use in one of two ways:
- The use of Private Sector Leasing, a scheme for families and individuals who find themselves homeless and so are helped to find immediate, temporary accommodation whilst their claim for permanent housing is being processed;
- Nightly let schemes, again for temporary accommodation.
Both schemes are council-led but the problem with the former is that the actual landlord is not named on the tenancy agreement. This is because that position is assumed by the LA’s managing department or agent. It is the LA who is responsible for the finding, vetting and placing of tenants and dealing with any later issues. In effect these leaseholder landlords have stepped back from all aspects of flat management.
So why do landlords sign over their properties? In one word, incentives, which are offered under s25 of the Local Government Act 1988 (consent required for the provision of financial assistance etc). These incentives include:
- The authority paying the costs of leases;
- Making small one-off grants (“finders’ fees”) to landlords to encourage them to let dwellings to households owed a homelessness duty;
- Paying rent deposits or indemnities to make sure accommodation is secured for such households;
- Making one-off grant payments which would prevent an eviction;
- Discretionary Housing Payments (DHP) to give financial help to meet a shortage in a person’s eligible rent and the housing authority consider that the claimant is in need of further financial help. Such payments are governed by the Discretionary Housing Payment (Grant) Order 2001.
Note: Whilst there is no limit set on the amount of financial help that can be provided, authorities are obliged to act reasonably and in accordance with their fiduciary duty to local tax and rent payers.
In total we have copies of 4 landlord licences out of 17 rented flats which begs the following questions:
- Do the rest need licencing?;
- If more have been granted licenses then why don’t we or our managing agent have more copies as interested parties?
I will of course pursue the missing licenses but as far as we are concerned, the whole process has been far from satisfactory and landlord licencing is again being open to consultation again as it expires in March 2020.
I have always been a supporter of landlord licensing if it can bring so-called ‘rogue landlords’ into the public domain as they have been very successful in hiding under the radar.
In 2015 the (then) Prime Minister David Cameron announced a new licensing scheme to crack down on unscrupulous landlords and we now have a ‘rogue landlord’ database which lists half of all landlord prosecution under the Housing Act 2004 between 2006 and 2014.
We also have the London Mayor’s Rogue Landlord and Agent Checker which can be found here.
The Housing and Planning Act 2016 has also given councils more power to deal with such landlords. But will they use them in these times of austerity? It remains to be seen.