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9:45 AM, 14th September 2023, About 8 months ago 20
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All tenants have a right to quiet enjoyment, but can councils still inspect a property if a tenant and landlord refuse?
The answer to the question – which many landlords may find surprising – is ‘Yes’. Councils do have a legal right to entry and don’t need permission from the landlord or the tenant.
In our second series of selective licensing special reports, we hear from one landlord whose tenant didn’t want his home inspected and an expert on licensing who says councils have more power than the police to enter someone’s home.
Councils can use a power of entry to enter a property even without a landlord’s or tenant’s permission.
A power of entry is a statutory right for a person (for example, local authority trading standards or environmental health officers) to legally enter defined premises, such as a rented property for a specific purpose e.g. selective licensing inspections.
Previously Mick Roberts, a landlord from Nottingham, told Property118 that only at the end of the five-year selective licensing scheme did councils want to inspect his properties.
He told us how one of his tenants was surprised that councils can force entry into the property.
He said: “Some of my tenants won’t let the council in. Licensing uses the words ‘intended entry’ almost like a crime has been committed.”
One of his tenants, who is a single father, wrote to the council asking why his property had to be inspected.
We are choosing to keep his identity anonymous.
The tenant says: “I am a single dad with three kids and chose to live in private rented accommodation due to the ease of getting a house and being left alone. I value my privacy.
“I never signed up to selective licensing. The inspection means taking time out of work and being self-employed means there is a cost to me from this.
“Who is going to cover this one hour of pay I have lost? This is a major inconvenience to me, I find this very annoying due to the fact that I’ve spent a lot of my own money on getting my home how I want it. I have been with this landlord for 10 years and never had a single problem.”
Mr Robert’s tenant says he understands why councils may need to check private landlords, but selective licensing is not the way forward.
He says: “I can see reasons why the council feel the need to look more closely at private landlords but slapping a tax on them all is not the way forward; the majority of landlords are honest and do their bit.
“There must be a better way to check on these landlords to make sure their houses are up to standard which will not amount to people’s rents going up.”
A spokesperson from Nottingham Council licensing support team replied to Mr Robert’s tenant saying internal inspections must take place at least once in the five-year period.
They wrote: “The inspection is just to check the property is free from hazards, and to check things like fire alarms and carbon monoxide alarms are well maintained and placed in suitable places etc.”
The licensing support team said ‘the notification of intended entry’ is stated under the Housing Act 2004.
Section 239 of the act states: “Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so—
(a) to the owner of the premises (if known), and
(b)to the occupier (if any).
Mr Roberts’ tenant says the council are forgetting that tenants have not signed up for the selective licensing scheme.
He told us: “I didn’t agree nor sign up for this. The council are forgetting there is a very important third party here, the tenant has a choice!”
Phil Turtle, the compliance director with Landlord Licensing & Defence, said councils have more powers than the police when it comes to inspections.
He said: “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.”
Mr Turtle explains in the cases of an unlicensed property councils do not need to give 24-hour notice.
He adds: “If the council believe that there is an offence under 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.”
Mr Turtle added that if a landlord or a tenant obstructs this entry this will be classed as a level four fine costing up to £2,500 – and they can still enter the property!
He said: “If you refuse entry they simply go to the Justice of the Peace (Magistrate) and get a warrant and enter by force.”
In the case of a tenant having ‘quiet enjoyment’ of their home, Mr Turtle says that most tenants don’t realise is that quiet enjoyment is only entitled to ‘quiet enjoyment’ from the landlord.
He adds: “Many tenants do not want the council going to their property, it’s their home. However, quiet enjoyment is only entitled against the landlord, not the council.”
Mr Turtle says he’s heard many horror stories to do with licensing, particularly HMOs.
He said: “Many hearsay examples we heard is if the council believe it’s unlicensed, they will turn up at 5am to the property and do a drugs-style raid with six or seven officers and force their way in.
“They style it as a drugs raid as they want to count the number of people that are sleeping there. One council we heard about sends their officers dressed similar to police officers to do this.”
Many tenants do not want the council going inside their rented property as it’s their home.
However, councils have a legal right of entry and can enter the property sometimes without even giving notice.
It’s not only a nuisance for tenants but for landlords too.
Join us in our final series of selective licensing reports where we question how councils get to expand a selective licensing scheme and yet their own housing gets slammed by the Housing Ombudsman.
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howdidigethere
23:43 PM, 14th September 2023, About 8 months ago
The article is not wholly truthful and appears to be written for the shock value slant.
What is not disclosed is that S239 refers to S4(1) to substantiate these powers. S4 - is concerned with Inspections by local housing authorities to see whether category 1 or 2 hazards exist.
Now a Category 1 hazard can be a non-working or non existent fire alarm, but a LHA has to have reasonable grounds to suspect that one is not in place or working.
Within the conditions of a selective license I suspect their is duty to make access to inspect at reasonable intervals to ensure certain category 1 & 2 hazards are dealt with.
I am not at all in the side of .gov here, I am of the view that they are operating a communist regime and have the style of the gestapo in their attitude. That said, we need to be thorough in our understanding in order to be empowered to know what they can and can't do.
I concur with the article's sentiment, but it reveals a naive shock and a realisation that we do not actually live in a free society where we are governed by consent, but are largely considered plebs who are dictated to by a system that believes we are the property of the state. Wake up people.
Mick Roberts
7:50 AM, 15th September 2023, About 8 months ago
You say it brilliantly
but a LHA has to have reasonable grounds to suspect that one is not in place or working.
And I don't thiink this is in
Within the conditions of a selective license I suspect their is duty to make access to inspect at reasonable intervals to ensure certain category 1 & 2 hazards are dealt with.
As they too busy being jobsworths taking 4 years to check paperwork ie. Boiler certificates which are then out of date that Inspections have took a back seat .
And even if they had the grounds in to inspect at intervals, they forgetting ONE VERY IMPORTANT PERSON here-The tenant. They didn't sign up for this.
All Nottingham's tenants know Selective Licensing has increased rents, made their Landlords sell & reduced their choice. Most don't want Licensing in to find a fault the tenant has caused who is paying 70% of market rent (which Licensing ddin't envisage ) which won't pay for what Licensing want. So rent has to bought up to level when u trying to look after tenant.I've got several 68+ year old tenants & it's derogatory that some 21 year old newly trained Licensing worker can come & inspect their home to decide if they looking after it or not. They never signed up to this.
Des Taylor & Phil Turtle, Landlord Licensing & Defence
12:44 PM, 15th September 2023, About 8 months ago
Reply to the comment left by howdidigethere at 14/09/2023 - 23:43Under Part 1 Section 4 of the Housing Act 2004 the Local Housing Authority (council) has the right to enter at any time if they
"for any other reason" consider that it would be "appropriate for any residential premises ... to be inspected."
Having attended Enforcement courses for council officers run by both DASH and CIEH I can confirm that they are taught right from the offset that his is their trump card to gain entry any time they want.
Basically if they want to get in for any reason they can and will consider it "appropriate" and this inspection can be at any time convenient or otherwise.
This is not scaremongering. It is what is taught to me and all the council officers on this courses.
They also have powers of entry under various other legislations that there was not space to go into in a short quote in an article although I did give a lot more background to the reported writing the story.
Unlike the police they do not need a warrant except where entry is refused whereupon the refer is summarily guilty of criminal obstruction as stated in the article and then the council will trot off to the magistrate to obtain a warrant whereupon they can use force to enter.
Mick Roberts
17:55 PM, 15th September 2023, About 8 months ago
I think though Des
consider that it would be "appropriate for any residential premises ... to be inspected."
Any council going to a house where zero problems where as in my cases, tenants have said YOU ARE NOT coming in, and then council cause of 'Consider', then going to get a warrant, they would be in deep Media crap. Breaking in doors of innocent tenants homes who's lived there 20 years with zero problems. They would have to have reason ie. Tenant has said my house is crap and has this fault, and there is no reason to deter them anyway as tenant wants them in.
In Nottingham, when push comes to shove, the top people in Licensing has not said to my tenants We are coming in. Once my tenants has said No, I don't want u in here, we don't agree with Licensing, Licensing has left them alone. I'd like Nottingham Council to bust one of my tenants doors in who don't want em in, I really would. Local Media would have a Field day. Selective Licensing in Nottingham has got such a bad name as it is.
Crouchender
23:04 PM, 15th September 2023, About 8 months ago
Reply to the comment left by Mick Roberts at 15/09/2023 - 17:55
If you ranked the risks within PRS then mandatory HMOs, then additional HMOs, then SL homes ( (ie homes housing family, couple or singles). The latter are low risk otherwise there would be mandatory requirements for FRSA.
So I could understand the need to inspect any HMO with warrants because of the make up of the number of households but not the low risk SL ones so if a tenant household - Family/couple/single don't want their 'quiet enjoyment' disturbed by the council they have that right. The council just need to 'consider' the resources (admin hours/ people) required for chasing up an unwarranted SL inspection vs. the HMOs ones and especially the unliceneced HMOs ones which there are plenty of - to use the tax payers money for getting those 'justified' warrants.
Mick Roberts
7:28 AM, 16th September 2023, About 8 months ago
Yes,
When SL came in, in Nottingham 2018, they was way over the top (still are) with the their rules, regs, conditions. I had to ask one of my Council contacts high up in Environmental Health for his thoughts.
He went to Head of Licensing and said
What u doing, this is overkill on normal family houses requiring Thumb turns, room measurements etc.
It turned out that head of normal houses Selective Licensing used to be in charge of the HMO dept. So he was bringjng all those stricter rules with him and his anti landlord head.
Jessie Jones
14:57 PM, 16th September 2023, About 8 months ago
Mick,
I have spent a good chunk of this morning reading the relevant parts of the Act.
Part 3 gives the Local Authority duties which encompass HMO's, and Selective Licenced properties, amongst others.
Part 4 relates to inspections for Category 1 or 2 hazards and says "If a local housing authority consider—(a) as a result of any matters of which they have become aware in carrying out their duty under section 3, or (b) for any other reason . . . . . the authority must arrange for such an inspection to be carried out.
Part 239 gives them the power of entry.
The concerning part for me is "(b) for any other reason". This seems to give Councils the right to make an inspection without any due cause what so ever, and without having to justify it other than to say "It's our job" as that would appear to be "any other reason".
The inspections are for Category 1 or Category 2 hazards, and given that Nottingham City Council consider that condensation in a double glazed window constitutes a category 2 hazard, you can be sure that they would be slapping themselves on the back and congratulating each other for some minor infraction in every inspection they do. Maybe a letterbox without a draught excluder, or a garden gate which doesn't lock.
So in summary, it appears to me that they could potentially insist on going into any property that requires a licence, even at the tenants express opposition, and without any due reason other than because they want to.
In reality, they wanted to inspect one of mine and the tenant said no, and I never heard another thing about it. I think that the bad impression that they would give if they started to run roughshod over tenants would probably stop them, although they won't be averse to making tenants think they have to let them in without actually forcing them. The letters they send out are certainly very aggressive.
I suspect that you might get more pressure from Nottm than I did as you are brave enough to stick your head above the parapet. I doubt they would adopt the "(b) any other reason" unless they had some evidence or suggestion that there was a Category 1 or serious 2 failure at your property. But we live in daft times with councils who don't want us travelling further than 15 minutes from our homes. If the council take a dislike to how you're running one of your houses, apologise to the tenants and let them know the reason you are now selling that property !
Crouchender
21:28 PM, 16th September 2023, About 8 months ago
Reply to the comment left by Jessie Jones at 16/09/2023 - 14:57
It is still not good optics for the council to override the tenants wishes. Afterall they are supposed to be the tenant housing guardians!
However we all know when councils do a SL inspection they rarely give any property the all-clear but generate up to £5K cost of changes required even, for example, a low risk ground floor property with several exits and insist on fire doors everywhere like as if they are treating it like a HMO license.
I have already told my tenants if they ever inspect those costs of change required no matter how OTT the changes maybe will have to be funded by future rent increases sadly. Remember councils go after low hanging fruit i.e Us SL property LLs as any penalties dished out goes into their income stream pot.
Mick Roberts
11:31 AM, 17th September 2023, About 8 months ago
Reply to the comment left by Jessie Jones at 16/09/2023 - 14:57
Yes for any other reason. I'd like em to try on mine.
Ha ha yes same here, we got to educate all the tenants, if u don't want 'em, don't let 'em in.
They inspected one of my mates who has a few Newish builds. Why oh why is beyond me. To get their numbers up.
They did find a window that wants a kid restrictor on. The couple had no kids.
But that could now go down in Licensing's book as having found a Category fault. Now got a clue what category, but good for Licensing.
Nottm actually leave me alone as I don't (now) attack the Licensing staff, more the Council & system & Imbecile Councillors for having no clue & communication with us whatsoever.
How we gonna' reduce homeless & bring rents down for tenants? Oh I know, let's give all the good Landlords a £890 tax for doing nothing wrong-That should work.
Mick Roberts
11:35 AM, 17th September 2023, About 8 months ago
Reply to the comment left by Crouchender at 16/09/2023 - 21:28
DASh accreditation are insisting on solid internal doors on each normal house. Aah right, £1000ish on a tenant paying cheap rent-How is that gonna' work?
As u say, rent increases. Cheap rents doesn't pay for 2023 New build standards. Council & Govt forgetting this. I can give em gold taps if the Council want, it is going to cost more rent though.
My tenants have had to write to DASH saying
These are my doors I have paid for, me having damaged them in the past, & I'm not having them changed. And I leave open at night anyway.