23 Feb 23
Landlords face an increasingly difficult situation as councils look to set up or expand their mandatory licensing schemes – leaving unsuspecting landlords with the prospect of paying thousands of pounds in fines for non-compliance.
But it doesn’t have to be this way, says Phil Turtle from Landlord Licensing & Defence.
He says that while the cards are stacked against honest and diligent landlords, the councils imposing hefty fines can be tackled.
Phil explains: “There’s something like 165 or so pieces of legislation and 400 odd sets of regulations that apply to landlords.
“You don’t stand a chance. And I know that as a landlord, I’m probably breaking one or more of those laws daily. I don’t know which specifically, but with that ridiculous number, it is impossible not to break one without even knowing it.”
He warns that is because there is so much legislation for landlords to follow that there will always be something in one of their rental properties that will trip them up – and leave them with a fine to pay.
‘The councils honestly hate landlords’
Phil says: “I have attended some of the enforcement courses that are run for council officers and the councils definitely seem to believe that all landlords are criminals. Some of the council officers we have had the dubious pleasure of meeting I would say actually hate landlords.
“Sadly, we also regularly see council officers conducting what can only be described as personal vendettas against even the best of landlords – for example if the landlord ‘dares’ to question their authority – which only exists in their heads and is not in the law.
“In one way they are right. Almost all landlords ARE criminals – as I say, the law is too complex for us not to be.”
Phil points out: “What we do at Landlord Licensing & Defence is to help landlords to protect themselves from themselves because of their lack of knowledge of the law and their legal and moral responsibilities.
“That sounds a bit harsh, but we then assist them in their defence when they inevitably get in trouble with council enforcement.”
The firm’s tagline is ‘Defence by compliance’ and along with Phil who runs the compliance side, there is also Des Taylor who runs the defence side.
Phil says that landlords need to be wary about pleading ignorance of the law – because that is not a legal defence.
‘Landlords are ignorant or unaware of their responsibilities’
He explains: “Unfortunately, most landlords are ignorant or unaware of their responsibilities under the Housing Act 2004.
“There’s also the Housing Health and Safety Rating System, or HHSRS, which is the standardised scheme of assessing properties for health and safety against 29 different hazards that came in in 2006.
“Most landlords don’t even know what is in that legislation and the HMO Management Regulations of 2006 and 2007.”
He adds: “And yet those are the laws that the councils are using to prosecute them for every single day.”
There are also civil penalties that were introduced in 2016 and most landlords don’t know about that either.
Phil highlights that before the law changed, councils had to prepare thoroughly to take a case to the Magistrates Court.
But now landlords are dealing with civil penalties, and while the burden of proof is supposed to be the same, in reality, it is much lower – and councils can issue massive fines without doing anything like the same amount of work.
Removed the rule that an HMO had to be three storeys
Phil says the HMO licensing change in October 2018 removed the rule that an HMO had to be three storeys – a move that led to an extra 180,000 HMOs coming into mandatory licensing.
He continues: “And then, of course, most of the councils are bit by bit, bringing in Additional Licensing, which brings in three- and four-person HMOs or what we used to call shared houses.
“And again, an awful lot of landlords don’t realise that a shared house is an HMO, and many are unaware that their council has brought in an HMO additional license.”
One of the issues, Phil says, is councils were slow to appreciate how lucrative additional and selective licensing could be.
Phil said: “Since 2018, they’ve gradually realised that this is a fantastic moneymaking machine and they’ve invested highly in Artificial Intelligence to find unlicensed HMOs.”
He highlights that ‘in the good old days,’ councils would use HHSRS to determine whether a property had a category one or two hazard – and if there were any category one issues, they were duty bound to issue an enforcement notice.
Rectify the issue and avoid criminal action
However, while landlords had usually 28 or more days to comply and rectify the issue and avoid criminal action – things changed once councils realised how they could issue immediate fines under the new HMO regulations without having to give the landlord any time or opportunity to put things right.
Phil says: “The HMO management regulations make it very easy to find faults in a property – and the Upper Tribunal has just made it even harder.
“They have made a determination that if there is a hazard on the day the council officer goes in to inspect, whether or not it’s been there for a millisecond, then it is a strict liability, and an HMO Management Regulations Crime has been committed.”
Debating this with a First Tier Tribunal Judge just last week, he told colleague Des Taylor: “Landlords are ‘Guilty until proven innocent!’”
He adds that what constitutes a breach of the HMO management regulations is pretty much whatever the council wants to be a breach. They will deliver a notice of intention to issue fines which in theory a landlord can contest – but, Phil warns, councils will largely ignore this and issue the fines anyway.
Phil says: “We have won appeals proving to councils that their so-called Amenity Standards are only guidance; they are not the law. The law says something different. They don’t like that!”
Removing the ‘old guard’ of environmental health housing officers
Another issue is that councils appear increasingly to be removing the ‘old guard’ of environmental health housing officers (EHOs), the ones that understood buildings and tenants and cared about improving housing.
Now, they are being replaced with enforcement officers who are not trained in HHSRS and don’t have the same level of knowledge but, Phil says, they are highly trained in police-style interview techniques and how to extract evidence from landlords.
Phil says: “Scarily, these people have far-reaching powers that are greater than those of the police in regard to housing. They’re not actually responsible to anybody, as far as we can tell.”
As part of its offering, Landlord Licensing & Defence will inspect a landlord’s property to find the potential problems so if the council makes accusations that are not accurate, there is evidence to prove them wrong.
However, Phil reveals that very few landlords think about getting an inspection before a legal action or even after they have been served legal notices and civil financial penalties.
Landlords tend not to respond when they get the first notice
Another major problem for landlords is that they tend not to respond when they get the first notice from the council, and they don’t contact Phil and his team either.
Phil says: “Landlords don’t understand the legal responsibilities but they also don’t want to pay for professional help – even when there are massive fines coming down the track. Far too often they think we are making up scare stories just to get their business.
“I find this is really sad and we can help landlords much better in the early stages before they actually get the fines.”
He adds: “And most really don’t believe it’s going to happen to them.
“But the minute you’re on their radar, you are effectively under caution. They are investigating for a prosecution.
“And it’s a horrible, horrible situation. But that’s how it is.”
Legislation aimed at catching criminal landlords misused
Phil highlights that a big problem is that most landlords are being caught out by legislation that is aimed at catching criminal landlords.
He explains: “The landlords that tend to get into most trouble are not the ones that the legislation was actually intended for.
“Most of the legislation was intended to get true rogue landlords, and that is rogue in the proper meaning of the term.
“Councils have found that they’re far too difficult to go after.”
He points out: “We’ve got council officers that are probably on 30, 40 grand a year and up against real hardened criminals who tell that they know where they live, where they park their cars and will target their family members.
“So, what councils have done is they’ve shifted their attention to the low hanging fruit, which is the well-meaning but not perfect amateur or so-called accidental landlords.
“Something like 80% of landlords have four properties or less. In fact, most have only one or two and these people are invisible – there’s no way to get the necessary knowledge to them.”
Don’t know they need to be licensed
And Phil says he still comes across landlords who run HMOs who don’t know they need to be licensed.
He explains: “We get two or three of those a week and part of that is they don’t understand three and four person HMOs. They don’t understand that they have legally been HMOs since 2004 because they used to be called shared houses.”
One recent case involved a portfolio landlord with HMOs who had a great working relationship with the council for 18 years, with multiple properly licensed three-storey HMOs. They also had one two-storey HMO that didn’t have a license.
Phil explains: “The legislation changed in 2018 that they now needed to be licensed – and despite being ‘great friends’ with council officers for 18 years, they have now had the book thrown at them.
“It is fascinating that none of these officers thought to mention the need for this two-storey HMO to be licensed. But then why would they when they could score a £30,000 profit for the council?”
Recommendations for all landlords
Phil has three recommendations for all landlords:
- If you are an HMO landlord, learn what the HMO management regulations are
- Check the council’s website for every area where you have a property and see what the licensing requirements and so-called Amenity Standards are
- Understand in great detail what those regulations mean for your property.
He also warns that landlords should be prepared for a shock because they will find out what it is like to work with councils in the false belief they are your friends – and how expensive this mistaken trust will one day prove to be.
That will be the case if they are hit with a civil penalty – which has a ceiling of £30,000 – but a council can (and will) claim that for EACH breach of the rules.
Life for landlords is going to keep on getting expensive
With the proliferation of Selective and Additional licensing schemes on top of the now much wider mandatory HMO licensing scheme, Phil says that life for landlords is going to keep on getting more expensive as they pay to join the schemes.
And the landlord’s local council will take every opportunity to slap them with a hefty fine because, he says, the days of councils offering advice to landlords are over.
But the real criminal landlords, Phil warns, those for whom the licensing schemes were intended to eliminate from the Private Rented Sector will continue to trade unencumbered.
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