Guidance clarifies council powers to enter premises and seize documents

Councils can enter a landlord’s business premises under rules set out in the Renters’ Rights Act.

However, government guidance makes clear that the business premises power cannot be used to enter premises that are wholly or mainly used as a home.

In December last year, under the Renters’ Rights Act, councils were given powers to carry out inspections.

The government has now issued further guidance explaining how councils can use powers of entry, apply for warrants, and seize documents during investigations.

Councils must provide written evidence

The guidance says a rental sector business is defined in the Renters’ Rights Act, as a business connected with:

• letting residential accommodation in England
• creating licences to occupy such accommodation
• marketing such accommodation for a tenancy or licence to occupy
• managing such accommodation under a tenancy or licence to occupy

The investigatory powers guidance says councils may apply to a justice of the peace for a warrant to enter specified rental sector business premises where a non-routine inspection cannot be carried out with at least 24 hours’ notice.

The guidance says councils must provide written evidence on oath that one of the following applies:

• entry has been refused, or there are reasonable grounds to believe entry will be refused, and the occupier has been notified of the intention to apply for a warrant
• giving notice might result in evidence being hidden, removed, or tampered with
• no occupier is present, and waiting for an occupier to be present would defeat the purpose of entry

The guidance also says councils must provide evidence that they are acting in an official capacity, and that there are reasonable grounds to suspect the premises are being used for rental sector business and are not wholly or mainly residential accommodation.

Councils must also have reasonable grounds to expect relevant documents to be held on the premises which may be required to be produced or may be liable to seizure under the Renters’ Rights Act.

Officers must usually provide identification

Under the powers, councils can seize documents in electronic or written form.

The guidance explains that councils may require documents to help determine whether there has been compliance with rented accommodation legislation where there are reasonable grounds to suspect non-compliance.

Where a document is held electronically, the guidance says councils may require a copy in a format that can be easily taken away, such as a hard copy.

The guidance says that where officers enter business premises without a warrant, they must provide at least one person on the premises with evidence of their identity and authority, if anyone is present.

It also says that where it is not reasonably practicable to provide identification, information gathered during the inspection may still be used.

The guidance says: “When using either of the powers of entry into a business premises, you have the power to seize and detain documents if you have a reasonable suspicion that they may be required as evidence in proceedings for a breach or offence under the rented accommodation legislation.”

It adds: “If there are people on the premises, before you seize documents, you must show at least one person proof of your identity and authority. However, if it is not reasonably practicable to do so, you do not need to.”

Councils have more power than the police

Landlord law expert at Landlord Licensing & Defence, Phil Turtle, has previously told Property118 the new power of entry is simply embodying what councils have been able to bend the law to achieve for years.

He explains: “A council can still inspect a property even if the tenant and landlord refuse to give permission. Councils have more power than the police to enter your home.

“Already, before the Renters’ Rights Act powers of entry: The Housing Act gives councils entry under Section 239 which gives them the ability to go in and inspect because of an official complaint to determine whether any function under parts one to four of the Housing Act should be exercised. If the council think anything is wrong in the property or if anybody has complained, they can go in under Section 239 in 24 hours.”

“But when dealing with an unlicensed property, councils do not need to give 24-hour notice. If the council believe that there is an offence under Housing Act 2004 Section 72 which is anything to do with HMO licensing or Section 95 (selective licensing) and they have reason to believe the property is unlicensed, they don’t need to give notice they can just turn-up and demand entry.

“Often the council will do a dawn-style raid at five in the morning with eight or so officers dressed to look like police uniforms, and they’ll threaten their way in.”

He says landlords and tenants can be fined if they obstruct entry to the inspection.

He adds: “We hear so many stories that councils tell foreign nationals that if they don’t let them in, they will get deported.

“The officers will barge their way upstairs to count how many people are in beds and claim they are all living there. Councils seem to think that an unlicensed HMO is second only to murder!

“If a landlord or a tenant obstructs this entry, it will be classed as a level four fine costing up to £2,500, and they can still enter the property!