The criminalisation of landlords by Durham Council

by Larry Sweeney

13:34 PM, 5th September 2016
About 3 years ago

The criminalisation of landlords by Durham Council

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The criminalisation of landlords by Durham Council

Every landlord should sit up and take note of the prosecution and conviction of Nichola Barker. Durham council prosecuted a law abiding citizen Mrs Barker for not having a reference for her tenant, when the tenant took up occupancy of the said premise. durham council

Mrs Barker had indeed demanded a reference however the tenant had not supplied the reference at the time of her moving in. The reference was actually supplied later.

The housing act 2004 is crystal clear and worded in such a way as to avoid situations like this. Landlords have complied with their obligations when they DEMAND a reference. Demand being the key word. Should the tenant fail to, or not wish to supply a reference, the landlord must then make a judgement call as to whether to accept or decline the prospective tenant.

This spurred me on to reviewing Durham”s License conditions. They are absolute rubbish and fail every legal test. Every License issued is illegal.

  • Firstly Landlords are not required to obtain references, they must according to the act, demand references. Upon demanding they have complied with the act.
  • Secondly Durham state that a housing history of 5 years is required. Durham with this condition are forcing landlords to discriminate against vulnerable people, ex offenders, immigrants and kids leaving home.
  • Thirdly Durham are in breach of the Housing act 2004 section 90 (7) by inserting clauses designed to alter the terms of a tenancy.
  • Fourthly Durham are in breach of the DPA by demanding landlords supply them with Dates of Birth of tenants.

I would urge every landlord in Durham to reject their license and demand their fees be returned forthwith.

Finally in conjunction with Property 118 which highlights such illegality, I wish Mrs Barker every success in the action she must now institute.



Comments

David Rundle

13:46 PM, 6th September 2016
About 3 years ago

There is more to this than jobs worth I hope- did the tenant commit criminal offences that led the council to see the demand references condition?

Dylan Morris

14:35 PM, 6th September 2016
About 3 years ago

The article states that the landlord Nichola Barker has been "prosecuted" and now has a "conviction" so is this a criminal offence ?

Old Mrs Landlord

22:40 PM, 6th September 2016
About 3 years ago

Reply to Roger Cooper: I feel your pain but fear you are fighting a losing battle on this one. You may explain the rule (also followed by 'practise/practice and advise/advice) until you are blue in the face, but there are two generations now adult who have not been taught spelling and grammar lest their creativity should be stifled. Now that we have spellcheckers and online self-publication things are rapidly returning to the way they were in Shakespeare's day. Mistakes such as "elude" where "allude" is intended in the comment following yours are commonplace where the writer is relying on a spellchecker. There is a glimmer of hope, however: I'm given to understand that in the current school curriculum grammar has been rehabilitated. Yeh, yeh, I know, I should get out more!

Returning to the subject of the thread, I'm glad to learn I haven't broken the law as our properties are not in a licensed area.

Larry Sweeney

20:24 PM, 7th September 2016
About 3 years ago

There has been so any comments on this article that I have decided to attempt to address the points in one thread.
Firstly my thanks to Roger Cooper for pointing out the typo. Licence is indeed a noun . To Scot Scot, the reality is that these licensing schemes are popping up every where. They are nothing more than revenue raising scams and most do not comply with the law. The lady in question was prosecuted for failing to adhere to a condition of her licence.. The prosecution was flawed as the council condition of obtaining a reference is not correct. The housing act states that a reference must be demanded. If the lady demanded the reference she was in compliance with the 2004 act. Durham Council have in effect rewritten the statute . To Monty Bodkin who makes the point that the defendant did not attend court. This is a valid point , however had she bothered to attend with a competent advocate ,she would have wiped the floor with these Council Nazis.
I agree completely with Peter Fredericks that these councils are staffed with rotten jobsworths, Unfortunately Peter ,Durham are little different from other Local authorities. Landlord Licensing has without a doubt exposed these bodies as pretty useless. Finally to Dylan Morris. Yes the offence is indeed a criminal offence, However with a higher threshold than Civil breaches, Landlords can in fact turn this travesty to their advantage by putting the Zealots to all the Proofs.

Dylan Morris

20:32 PM, 7th September 2016
About 3 years ago

Reply to the comment left by "Larry Sweeney" at "07/09/2016 - 20:24":

So this very unfortunate landlord now has a criminal record. She will have to declare this to all her insurance companies upon taking out a new policy or renewal (buildings and motor). And also any future employers etc. It truly beggars belief.

Larry Sweeney

21:05 PM, 7th September 2016
About 3 years ago

Reply to the comment left by "Dylan Morris" at "07/09/2016 - 20:32":

Yes Dylan ,that is the case. She as a matter of urgency needs to appeal this to Crown court. The Council also need to re write their conditions to ensure they are legally compliant in every respect. This conviction will be tossed on appeal and opens the door for a civil action against Durham Council. Their "obtaining references" clause is illegal and invalidates their licenses.

Matt Cole

9:12 AM, 8th September 2016
About 3 years ago

Can someone please advise where the licensed areas are within DCC?

Michael Barnes

16:06 PM, 10th September 2016
About 3 years ago

Reply to the comment left by "Larry Sweeney" at "07/09/2016 - 21:05":

I do not see how the conditions are not legally compliant.

1. Housing Act 2004 Schedule 4 paragraph 2 states "A licence under Part 3 must include conditions requiring the licence holder to demand references from persons who wish to occupy the house."

2. Housing Act 2004 Section 90 paragraph 1 states "A licence may include such conditions as the local housing authority consider appropriate for regulating the management, use or occupation of the house concerned."

3. Housing Act 2004 Section 90 paragraph 4 states "A licence must include the conditions required by Schedule 4."

4. Licence term 7 states "References must be obtained for all prospective tenants in order for the licence holder to make an informed decision regarding the occupancy of the property. It is best practice that the Councils referencing service be utilised to provide references however, where a licence holder wishes to carry out their own reference checks the outcomes must be available to the Council upon request"

The licence term 7 includes the condition of Schedule 4 Paragraph 2 (as references cannot be obtained if they are not demanded) and extends this in accordance with Section 90 Paragraph 1 by requiring that the references are actually obtained.
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Interestingly, though, the Licence terms do not state what constitute a suitable reference, only that the reference is obtained!

Michael Barnes

16:47 PM, 10th September 2016
About 3 years ago

Reply to the comment left by "Michael Barnes" at "10/09/2016 - 16:06":

Further to my above post:

Secondly Durham state that a housing history of 5 years is required. Durham with this condition are forcing landlords to discriminate against vulnerable people, ex offenders, immigrants and kids leaving home.
They do not require it, they give it as an example of an acceptable reference.
They only require that the reference be obtained, not that the content of that reference satisfies any conditions.
The Licence states "Types of references acceptable to the Council include a minimum 5 year housing history check which takes in account things such as property damage/recharges; rent payment; and tenant behaviour. "
This is badly written as it does not give a full list of acceptable references, just one kind.

Thirdly Durham are in breach of the Housing act 2004 section 90 (7) by inserting clauses designed to alter the terms of a tenancy.
Please advise what these terms are, as I cannot see any.

Fourthly Durham are in breach of the DPA by demanding landlords supply them with Dates of Birth of tenants.
How does this breach the DPA?
All it does is place a duty on the Landlord to notify the tenant (before obtaining the data) that their data may be passed on to the council.

Larry Sweeney

18:25 PM, 10th September 2016
About 3 years ago

Hi Michael,
I simply do not have the time to go in to every aspect of flawed schemes introduced by all of these authorities.
I will address the principal point raised which resulted in the conviction by Durham.
The Housing act states that a landlord must DEMAND references. This does not mean that references must be obtained. Legislation has been complied with by making a demand.
Durham misrepresented the act, by wording their conditions to say references must be obtained and prosecuted on this basis. Please read the Housing act 2004 In it"s entirety , then read Durham"s conditions. Demand is very different from Obtain.
Primary legislation is drafted by Parliament and Councils do not have the power to alter this legislation. Durham by doing so Invalidate their Licences and leave themselves open to Legal action. Finally demanding Tenants DOB is excessive and a breach of the DPA Third Principle

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