The criminalisation of landlords by Durham Council

The criminalisation of landlords by Durham Council

13:34 PM, 5th September 2016, About 5 years ago 38

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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

by Michael Barnes

14:57 PM, 11th September 2016, About 5 years ago

Reply to the comment left by "Larry Sweeney" at "10/09/2016 - 18:25":

I have read the HA 2004 and Durham's conditions, and you seem to be ignoring Housing Act 2004 Section 90 paragraph 1, concentrating only on Housing Act 2004 Section 90 paragraph 4.

It also is not unreasonable to obtain a tenant's date of birth, as that is part of their identity and must be obtained to do any reasonable tenant referencing. e.g, there must be hundreds of John Smiths around, but far fewer with a specific DoB.

However, in the Durham case there does not appear to be any DP statement on how the tenant's (or indeed the landlord's) details will be used, and that may not comply with the DP Act.

by Larry Sweeney

17:38 PM, 11th September 2016, About 5 years ago

Reply to the comment left by "Michael Barnes" at "11/09/2016 - 14:57":

Hi Michael,
Your refer to the section which states that a LA may insert such conditions as they may see fit.
This does not give them power to change the mandatory conditions drafted in primary legislation and that states that references must be "demanded".
Their changing that requirement to" obtain" is illegal. They may in addition to mandatory conditions, insert further conditions, but not conditions designed to alter what is primary legislation.
Michael, believe it or not Liverpool actually agree with me on this point and I have it in writing. I will over the next few days retrieve this written proof and post it here . Hopefully this assists everyone. Finally it is not only Durham who are wrong on this point. Tony Newham of Croydon Council was interviewed on Radio 4 with me. He expounded on what a great scheme they have . Unfortunately his great scheme is also flawed. they also specify" obtain" instead of demand.
These points simply serve to prove that those "drones" in Local authorities drafting the conditions for their revenue raising scams are clueless.

by Michael Barnes

22:01 PM, 11th September 2016, About 5 years ago

Reply to the comment left by "Larry Sweeney" at "11/09/2016 - 17:38":

Whilst Liverpool might agree with you, I would not put any money on a Judge agreeing.
Unless you are saying that they should have one condition to demand references and another condition to obtain references. Even then, in my opinion, "obtain" includes the requirement to "demand".

by Larry Sweeney

8:36 AM, 12th September 2016, About 5 years ago

The facts are simple.Primary legislation states Demand a reference not obtain.
No local authority should attempt to insert conditions subverting or altering primary legislation.Furthermore the HA 2004 states authorities may not insert conditions designed to alter the terms of a tenancy.The landlord may have a condition stating that occupancy is granted on the basis that a reference has been demanded but the occupant has refused to supply same as they do not wish it to be disclosed to the interfering Authority.The Councils stipulation that a reference must be obtained therefore does not only alter the mandatory condition but also attempts to alter the terms on which a tenancy is or may be granted.Remember a conviction must be on the Beyond reasonable doubt threshold.Our discussion proves that there is reasonable doubt just about everywhere with respect to this Council Crap.

by Michael Barnes

10:20 AM, 12th September 2016, About 5 years ago

Reply to the comment left by "Larry Sweeney" at "12/09/2016 - 08:36":

The Act actually says "A licence may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house.

A tenancy does not exist until the tenant moves in. Therefore this clause says "cannot change any existing tenancy", not "cannot change any future tenancy".

by Larry Sweeney

12:08 PM, 12th September 2016, About 5 years ago

Michael,
Back to the substantive issue. The legislation was designed and certain mandatory conditions drafted. One of those was that a reference be DEMANDED. No local authority can re write or subvert the law. The inserting of a further clause/condition designed to alter primary legislation is not legal. As I previously stated Liverpool council have concurred with me on this point in written correspondence.
Their ability to insert further conditions does not mean, nor was it ever intended to mean that primary legislation could be altered. If one was to go down that route it would in effect mean that the Local authority could dictate to us who we should rent to and who would be precluded from taking up a tenancy. I see several new issues here under ECHR principles , property rights etc.
Remember as I said previously, a conviction under this legislation must be on the criminal threshold "beyond reasonable doubt. Should any landlord be prosecuted I undertake to provide him/her with written statement from Liverpool who have in this rare instance correctly interpreted Legislation. A Local authority which attempts to enforce this illegal condition leaves itself open to Discrimination claims, and Civil action by property owners. Parliament has not yet ruled that Councils can decide who we rent to.

by Michael Barnes

12:55 PM, 12th September 2016, About 5 years ago

Reply to the comment left by "Larry Sweeney" at "12/09/2016 - 12:08":

The issue is "what does the law say?"

That is what Judges will look at, not something written by a Liverpool Council representative.

by Neil Patterson

14:16 PM, 12th September 2016, About 5 years ago

From Larry Sweeney,

Councils acting illegally by insisting references are obtained. The law states that Demand suffices.
I have screen shot an Email from Liverpool who amazingly have in this instance correctly interpreted the Housing act.
Could you post this up in the Liverpool and Durham conversations ,which hopefully will assist Landlords, where their Councils are acting contrary to the act by altering a mandatory condition . This should give clarity hopefully.

“Regarding your statement on the condition may I please refer you to the condition to read.

1.9. The licence holder shall demand a reference from persons who wish to occupy a letting in the property before entering into any tenancy, licence or other agreement with them to occupy the accommodation.

I will explain this condition so as that all your previous points you made are answered.

This is a mandatory condition set by the Government not Liverpool City council.

The conditions states that the licence holder shall demand a reference from a person. The condition clearly states that you demand a reference if you do this and one can’t be or isn’t provided you have met this condition as you have demanded one. What you consider a reference is your choice as is the choice to take on a tenant.”

by Michael Barnes

16:38 PM, 12th September 2016, About 5 years ago

Larry,

You repeatedly assert "Councils acting illegally by insisting references are obtained", but you do not offer any reasoned argument to support this in the face of contrary evidence from the Housing Act 2004.

by Larry Sweeney

17:18 PM, 12th September 2016, About 5 years ago

Michael The housing act states Demand not Obtain.
End of story. One a landlord can show that he demanded a reference he is in compliance.I have also screen shot the opinion of LCC. I can do no more. No council can legally insert conditions designed to subvert alter or undermine the legislation.For those who doubt please read the housing act 2004.The key word is demand.


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