02 Mar 2021
by Des Taylor & Phil Turtle, Landlord Licensing & Defence
You may well receive a letter from the council. It will look relatively innocuous and particularly bureaucratic.
There is no standard format for these letters, and one could be forgiven for concluding that they deliberately make them confusing so that you, the landlord, don’t realise just how serious they are until it’s too late and they’ve strung you out to dry.
Often, though not always, there will be a subject line including the worlds “Housing Act 2004”. That’s a definite clue you’re in big trouble.
There may be references to any of these:
- Section 249A and schedule 13
- Section 72(1)
- Section 234
- Schedule 5
- Section 66(2)
- And other ‘sections, clauses or regulations’
The letter will sometimes be based on their suspicion or allegation that you are operating an unlicensed HMO (even though you know you rented it out as a single family let, or to 3 or 4 sharers).
It could be in relation to an Improvement Notice because they’ve gone in without your knowledge to do an inspection.
Very often it will be a Notice of Intent to impose financial penalties (I’ll cover all of these in detail in future articles).
Today, I want to warn you about an evil and insidious trap that councils appear to set for landlords to fall into. Sadly, we speak to landlords daily who have fallen into their trap at vast personal and financial cost.
So, in many such letters you will find a paragraph along these lines. (Remember there is no standard format – so every council does it differently).
“If you would like a meeting to discuss the matters outlined before making your representations please contact the housing team so that arrangements can be made to meet at the Town/City Hall”
Alternatively, you may get a similar “offer of a chat at the Town Hall” offered to you in a phone call.
Now that sounds helpful and constructive. Do not be fooled. It is not. It is a trap.
As hundreds, if not thousands, of experienced and portfolio landlords have found to their bewilderment and cost – when they arrive for the supposed ‘friendly meeting’, they find that the council Housing people they thought they got on well with are no longer friendly.
They no longer refer to you as John or Rachel. Suddenly you are Mr Smith or Mrs Jones.
You will be wheeled into a room with recording apparatus and the ”meeting” starts with them saying words that you’ve all heard on the TV:
“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
Landlords at this point are understandably dazed and confused. However, the penny still doesn’t drop as to how seriously in trouble they are. They unsuspecting landlord still doesn’t compute that the council has tricked them into attending a recorded Police and Criminal Evidence (PACE) interview under caution – for which the sole purpose is to get The Accused (i.e. you the landlord) to self-incriminate on criminal charges relating to the Housing Act 2004.
And, of course, because the landlord did not realise they would be attending a Police and Criminal Evidence Act interrogation, they didn’t take a professional representative or solicitor with them.
Often the council officers will avoid explaining to you (in terms that you would understand in your state of shock) your right to get up and leave without saying a word. They will say it in weasel words, so they’ve technically complied with the rules to their benefit, not yours. Their next level of trickery is to get you to agree to proceed without representation using what expert sales professionals call a ‘presumptive close’. Along the lines of “I see you don’t have a legal representative with you, I take it you’re happy to proceed anyway?”
Of course the stunned and worried landlord agrees, because the poor darling still thinks he or she can explain away whatever the ‘misunderstanding’ is. The landlord chats away to try to explain that the fire alarm hadn’t been tested because he’d been in hospital, or the fence hadn’t been repaired because of the stormy weather etc etc.
The Prosecution (because this is the role the council are now playing) are delighted; as the landlord ‘sings like a canary’, because in every verse the landlord sings there is more and more self-incrimination.
Here’s the thing: In many of these council prosecutions – just like the police – they didn’t have enough evidence to prosecute before the landlord handed it to them on a plate.
However, in almost every case we’ve dealt with at Landlord Licensing and Defence, after the Landlord has been to a PACE interview, the transcript shows that he or she has given the council the evidence they so desperately wanted.
Do not self-incriminate
Now, dear fellow Landlord, let me make this abundantly clear. If you ever receive one of the letters I mentioned or anything similar: DO NOT SPEAK TO THE council.
Why, because they have switched into ‘Prosecutor” mode and their sole interest is in gathering evidence to use against you – Period.
At this point they are no different to the police and they’re after you for the equivalent of a GBH (grievous bodily harm) charge. If the police had you on a GBH charge, you wouldn’t be popping in for a chat to explain that it wouldn’t have happened if your daughter hadn’t been ill.
So, under no circumstances talk to the council until you’ve taken professional advice from Housing Act Offences specialist like ourselves or a very specialist (not high street) solicitor.
So exactly what is a PACE interview?
If you thought that only the police could do recorded interview under caution, you’re wrong.
The Health and Safety Executive, the Environment Agency and all Local Authorities (councils) are empowered to interview ‘Criminal Suspects’ under caution in a Police and Criminal Evidence Act 1984 (PACE) interview.
And what most of us don’t realise is that your interviewers from the council, often your previously friendly housing officers, are trained interrogators just like the police.
As mentioned above, the sole purpose of a PACE interview is for them, ‘the prosecutors’, to gather evidence against you ‘the suspected criminal’.
This puts your ‘friendly’ council housing offers in a rather different light, wouldn’t you agree? Unlike the police, who to be fair are relatively ethical in their approach to PACE interviews and making suspects fully aware of their rights, sadly council bureaucrats are not part of a disciplined service and are often devious if not downright dishonest in their quest.
Council as Prosecutor
As one very senior council Environmental Health Officer (housing) recently explained to me “We are so under-resourced that we no longer have time to help and train landlords. We only have enough resources to do licensing and enforcement.”
And whilst we at Landlord Licensing and Defence do understand the councils’ private sector housing departments have always been under-resourced – from the devious and immoral actions of council housing departments we see on a daily basis – it is difficult not to infer that the truth is somewhat different.
Many would conclude that the true aim is revenue generation: Extracting licence fees from landlords and using licence conditions to create hundreds of new ‘criminal offences’ in order to then collect massive Civil Financial Penalty Fines – which the council gets to keep. Just like parking tickets which quickly become little more than a revenue-making stream, so it is now with Housing Act financial penalty fines against landlords, but at up to £30,000 for the council coffers per offence!
Some aim to destroy
From the cases that cross our desks each week we can only conclude that certain councils’ housing officers or departments are on a power trip and actually on a mission to destroy landlords for their council’s financial gain.
Of the landlords who come to Landlord Licensing & Defence for help, those who’ve already attended a PACE interview are usually already staring at Civil Financial Penalty fines from £25,000 to £150,000.
Plus, the council will have declared the landlord a “not a fit and proper person” to hold licences and will be in the process of revoking licences on other properties he or she owns.
Once one council declares you ‘not fit and proper’ as a landlord your ability to hold licences with other councils is effectively ended and so is your business. The stress makes many such landlords mentally and physically ill. Not that these council people seem to care.
All is not lost
Even at the late stage I’ve just mentioned, we have been able to rescue the landlord’s business by a process of negotiation (Professional representatives like ourselves can hold non-incriminating discussions with the prosecutors that a landlord is unable to because of the risk of self-incrimination), plus we make arrangements for alternative ‘fit and proper’ licence holders, together with implementing full HHSRS (housing health and safety rating system) and Fire Risk Assessment programmes to bring the properties rapidly up to a full compliance standard. However this is specialist work.
What Should Landlords Do?
(1) If you get a letter from the council – anything ‘official’ related to the Housing Act 2004. DO NOT SPEAK TO THE COUNCIL. Take professional advice so you don’t self-incriminate.
(2) If they offer you the chance of a meeting or chat (or even if they’re honest and invite you to a PACE interview under caution) DO NOT ACCEPT YOU ARE UNDER criminal investigation – so get help from experts like ourselves or other Housing Act specialists.
(3) Do whatever it takes to make sure that your properties are fully compliant with the Housing Health and Safety Rating System. The best way is to have a private (hence safe) HHSRS Audit and Fire Risk Assessment done as a matter of urgency. (Third-party gives you proof of action and evidence to use in your defence).
(4) Understand that you are going to have to pay possibly several £1,000 on professional advice and property improvements to fix your situation, but these fees are way, way, less than those £10,000s fines you are otherwise staring in the face.
Landlords need to get their heads round this simple binary option: You either pay professional fees for professional advice or you pay massive fines.