Introduction
This article has been produced for both Landlords and council officers. We focus in particular on HMO licensing inspection issues. After extensive experience of dealing with council officers due to HMO licensing and various inspections, it is clear that both Council officers and many Landlords are not clear about the real role of the council officers. The issue is that the officers tend to abuse their position and act irresponsibly, sometimes even violating the law of the land and overstep their real power.
The good news for the Landlords are that in any event the real power of the council officers are very limited. They cannot fine you, they cannot do much really. The reason is that in order to be able to do anything they need to start persecutions, and prosecutions are very hard indeed even in those cases where the defendant is not amounting to a real defence. In most cases when the landlord would amount to any defence at all, it would be almost impossible for the council to be a winner in a prosecution case. Therefore, when you see their threats of fines up to 30K and so on it is only an empty threat. They would need to start prosecutions and those are very difficult unless a serious incident had taken place, like a fire or a building collapse that injured or killed people etc.
In the famous Book “The art of War” it is said “know your enemy, and you will win every battle” or better even “the best outcome of a war is such a war where you win without even fighting” and this is the case with the council. In most cases no matter what the officers come up with there is almost nothing that they can do and issuing an enforcement notice could be dangerous, because if it is issued on the wrong grounds then:
1 You may decide to simply ignore it and they would need to start prosecutions, and the prosecutions could fail. At that point, you could sue successfully retrospectively for issuing an unlawful enforcement notice.,
2 If the enforcement notice is unlawful, then you can decide to fight it with a simple letter or email pointing out how the enforcement notice is unlawful. It is even better to ask based on what law the enforcement notice was issued, at that point if the enforcement notice is not lawful then if the council does not withdraw it they maybe liable for successful civil lawsuit.
What are the most important aspects of an HMO to be compliant with regulations.
1. Fire regulation compliance. This is the reason for most successful prosecutions. So be fire regs compliant. It is not difficult.
2 Amenities compliance. Number of cookers, Room sizes, number of bathrooms per occupant etc. You can read more about it on the Council’s HMO amenities standards.
3 Anything else is pretty much subjective and very unlikely to lead to a successful prosecution.
How crazy, out of touch and ignorant, arrogant council officers can be. Do not give in.
What I found over the years is that council officers go around their inspections fault picking, that is all they do. Some council officers are better than others at their job, but you may find some officers that have lost the plot altogether. What to do in such cases? This is when the following story will help you. In 2012 I had a council officer visit one of my HMOs in Nottingham. The officer decided to make a room uninhabitable, this was based on the fact that the boiler was in the loft above this habitable room. Therefore, in order to access the boiler, you had to go through the room. Because of this, the room must not have been habitable, according to the officer. His argument was that if the boiler stopped working, and it required maintenance, the tenant could have denied access to the boiler and therefore the whole house would have been without heating. Basically this view was based on no law and this happens all the time. Of course that room had been habitated for well over 10 years now.
If you look at any report from the council officers after their visits, what you find is that some of their requests of course are subjective and based on NO LAW. They basically sometimes make things up as they go along! But going back to that case, the council officer tried to make one room uninhabitable based on the boiler being in the attic of that room.
I still keep the email he sent me stating this. To this I replied with an email copying other people . All I had done in my reply is pointing out that most rooms in HMOs have interlinked smoke detectors in each room, each detector in the room requires periodic access for various reasons. If it were true that no item with requires maintenance for the house to be operational can be placed in the habitable room therefore no HMO with smoke detectors in every room must have none of the rooms occupied at any point as sleeping accommodation. Therefore, the vast majority of HMOs would be empty by law. It was really absurd, and of course there was no law stating that the boiler could not be located in an habitable room or in the attic of the habitable room. Basically, the officer made it up, as usual.
After I sent that email I heard nothing for years and no issue was ever raised on the matter The room had been habitated ever since for over 10 years without any issue at all. Obviously other council officers visited the same house several times, and we never had any issue, with this , do you know why? Once again because the council officer MADE IT UP! There was no law no regulation nothing that prohibited that room to be habitable, absolutely nothing. Imagine if I just rolled over and accepted it, I would have lost in the region of 70K over the years in lost rental income. Therefore, it is important to stand your ground and never roll over to unreasonable requests.
Why fight back, is it worth it?
Most of the time no matter what they come up with, it is cheaper to comply and move on.
On other occasions when they might, for example, object to the use of a room as rentable, then it might be definitely worthwhile to fight them head on, provided that you have the law on your side.
Before doing this it is better to know whether it is true that the room, in our example shall not be let out as sleeping accommodation, This is when you have to establish whether the request made by the officer is lawful or not.
How to establish whether a request from a council officer is lawful or not.
You will be surprised how may of the requests made by the council officers are not based in law, and they are completely subjective. Additionally, in several cases completely made up altogether.
You will find that the council officers send you long reports after their visits, and these reports look overwhelming with loads of jargon. Most of the time it is 80% nonsense, do not worry.
So the question is how to fight back the nonsense? Simple, ask them to state for each request what specific law they are using to make that specific request. What they sometimes say is:”it is a request made under housing act 2004“. The problem is that the housing act 2004 has limited and specific scope therefore what they can ask for is very limited and it has to adhere to the legislation.
However, the council officers sometimes go to outrageous extents like saying that under “housing act 2004” the entire building needs to be repointed or the exterior repainted. This is of course not true. Housing act 2004 does not say anything about the appearance of the building at all.
This does not mean that the council officer can mention a general law or statutory instrument that is not relatable to the specific request. For each request, it needs to be clear that there is a law or regulation which clearly s grants that specific request to be complied with. For example, if they ask you to remove a fridge from a corridor because it is alleged by the council or the fire brigades that it is a fire risk, the council officer must show what law or regulation states that a fridge cannot be placed in a fire escape route. Their request must not be subjective, it has to be stated in law clearly how each specific request is necessary. The law has to be clearly relatable to the request made.
For example, relating back to the fridge the council officer asked to be removed from a corridor (fire escape route), apparently there is no law or regulation stating that a fridge cannot be placed in the fire escape route. Since there is no evidence that fridges pose a real risk of fire there is no such requirements. To prove that fridges pose a risk of fire there must be studies that corroborate this hypothesis, then these studies can be used in court by the council. Since there are no such studies and relevant legislation, removal of Fridge/s from corridors is not a requirement as long as there is a clear passageway to get out from the building. The width of the passageway can be down to the smallest size of a door opening. Therefore, the distance between the fridge and the wall allowing people to go through it has to be in the region of 72 cm. (the width of a door opening)
The council officer, in this case, never managed to justify this fridge removal requirement by law. Then they said that the fridges caused obstruction to the exit. After that the council officer said both the council officers and the fire brigades agreed this is a legal requirement. To this I replied that The space between the fridge and the wall is wider than the standard opening of a door and whether the council officers and the fire brigades agree on anything this does not make legislation. In other words because they agreed on a requirement it does not mean that they had just made a Law that is enforceable in court. Laws are passed by parliament and approved by royal consent, not by an agreement between the council and the fire brigades.
After that I never heard back.
As another example, I had a letter sent by the council saying that under housing act 2004 I had to repaint the outside of the house. This if of course not a lawful request, because whether something is well painted is a subjective matter, and there is nothing in the 2004 housing act on HMOS that involves safety due to the painting of the exterior of the property.
After that request was denied I never heard back.
The council officer is never powerful at all.
If the council officer becomes unreasonable, do not be scared or antagonise him/her and you can point out how foolishly he/she might be acting. Tell them that in their face with no fear if you want . At times I have done precisely that and nothing happened , on the contrary, they tended to back down a lot. In fact at the time of writing there is almost nothing they can do because they need ultimately to prosecute you andporsecuituions are expensive and risky. They could be liable civilly if they make legal mistakes and you could challenge the council in court.
Why are council officers not that powerful?
It is because all they have to do is enforce the law, and it is very easy to comply with the law. The council officers have no power to issue fines. Only the magistrate courts can issue fines after successful prosecution .
In the unlikely case you are not 100% compliant with some regulations, they must allow you time and space in order to comply. They cannot immediately take legal action. It is too risky, and sometimes even counterproductive to their goal to have you to become compliant.
And remember in the worst case scenario it is very hard to prosecute you. Any monetary penalty must be issued by the courts after a successful persecution. Prosecutions are difficult, risky and expensive forthe council, and if you fight back they may even lose on the basis of procedural mistakes alone.
How do the council take action against you?
Assuming that you have applied for an HMO licence, you should not fear any council officer, because they have no power to issue fines. Any punishment can only be enforced through the courts.
This is not a hard and fast rule but the council prefer to take to court those landlords who are very small and will not amount to any defence. They are very scared of taking a large landlord to court. First remember that the council does not have any real power to issue fines, they can only start prosecutions and court proceedings like you and me can. Also remember whenever the council does anything in court they end up spending like crazy because they have to employ lawyers that are not in house. Sometimes the council has in-house lawyers, but they are few and far in between and they tend to leave the council very fast for some reason.
In case you have not applied for a licence and there is a fire or somebody died in the property, then they can act no matter what. It does not matter whether you are a small or big landlord, the council after an incident is sometimes under political pressure to be seen to have taken some action, to calm down possible outcry. Therefore, once again, always apply for the HMO licence and comply with all fire regulation in your building.
So whatever action the council want to take, they require a court order almost every time. Therefore when it comes to take action firstly they usually need to try whatever they can through your voluntary cooperation. Then failing that they are left with no option other than to take court action.