New regulations welcomed
Between Xmas and New Year Housing minister, Alok Sharma informed the world that the previously not so secret rumour of the change to the mandatory conditions for HMO licenses is to be introduced from April 2018. You can read this here
Gone will be the need for the property to consist of at least three floors but the requirement that there be five or more occupants constituting two or more households remains the same.
This widens the scope considerably
Most in the business have been hearing this for at least a year or more, it doesn’t bear too much comment, unless you count the announced prediction that this would mean that approximately 160,000 extra properties will need to be licensed, a figure that I doubt would even reflect the reality in London, let alone the rest of the country.
So licensing and enforcement teams in councils previously running only the minimum, three floor mandatory schemes are going to be a lot busier after April 2018.
Landlords being held responsible for recycling
But it was another mention in the press release that caught my eye that went largely un-noticed elsewhere, where Mr Sharma said:-
“Landlords will be held responsible for making sure the council’s rules on refuse and recycling are followed.”
I did a double take upon reading that and re-read the article to make sure I didn’t grasp this out of context but the only other possible reference is where the press release says:-
“The move will also benefit wider communities fed up with living near shoddily maintained properties without proper bins, dumped rubbish”.
What he might be referring to is rubbish dumped in gardens, which there is already a power to deal with under section 215 of the Town and Country Planning Act 1990, wherein the council can serve a notice on a landowner to sort it out or face a level 3 fine, currently standing at £1,000 but it is less than clear what he means in reference to refuse and recycling, other than overflowing bins.
I checked with a few other people to see if they had heard anything about this in more detail but nobody had any more to offer than I did.
Further digging around
I then went onto a range of council websites and read through their refuse and recycling policies but no mention of making landlords responsible for the way their tenants use the bins…..until this almost muttered suggestion from the DCLG.
My instinctive response being:-
“How the (insert own favourite expletive here) is that going to work?”
Regular readers will know that I leave no stone unturned in my pursuit of the villainous landlord and the amount of sympathy I have for them couldn’t even be written onto the back of a stamp with a Quill pen but even I think this is a bit much.
More questions than answers
Of course, there is nothing I’ve seen in writing on this yet and the devil will always be in the detail but I can’t help wondering how this is going to be evidenced or enforced?
Potentially, a tenant at war with his landlord only need leave food waste in the recycling wheelie-bin or a discarded bottle of Xmas Prosecco in with the grass cuttings to drop him in the clarts as they say in the northeast.
Of course, the council does peer into your bins and issue penalties for transgressions but only when the council tax payer of 39 Acacia Avenue is the culprit for bins left in the garden of 39 Acacia Ave, not someone else who might live 100 miles away.
Who will physically enforce it?
And supposing the council does use whatever this new law is going to be to penalise the landlord? Who will do it?
Refuse and recycling usually operate under Environmental Services departments, or similarly named, who also do street lighting, gritting for snow (no don’t laugh!) and cracked pavements, so they are the likely suspects but then suddenly their role will be caught up in the world traditionally the preserve of Environmental Health or Tenancy Relations, who have a better grasp on the legal rights and responsibilities of a landlord, not to mention the problems with evidential trails that are the daily challenge for the enforcement officer.
The legal principle is that a landlord is generally not responsible for the actions of their tenants, unless they somehow encourage or support those actions. God knows TROs and EHOs expend more than enough time and effort establishing identity for housing prosecutions.
And what about defining culpability?
It is common practice, particularly in cities, for larger houses to have been converted into two separate flats with two owners. The tenants in these two flats frequently sharing a set of undefined bins.
If the tenants repeatedly flout recycling and refuse policies by using any old bin and a new law decides to put the landlord in the frame, who are the enforcers going to go against? The owners of Flat A, whose tenants may be a couple of responsible, recycling obsessives or the owner of Flat B, housing a bunch of students who still think their mum magically pops in when they are asleep and cleans up?.
And yes I am moaning about my real neighbours.
What is it leading to?
Notwithstanding that, will a landlord be required to evict his “Anti-Wombles”? Leaving s21 aside even ‘breach of contract’ (Ground 12) requires proof, are we going to see DNA testing kits to lift prints off of bean cans?
To my mind rubbish strewn gardens are a different matter and are adequately covered by s215 of the TCPA as mentioned above and the landlord should be culpable and able to take action against his tenants for putting him in this situation.
Speaking from experience
I hold this view because I do indeed deal with properties with front gardens that look like Berlin in 1945 and the tenants so fluid and interchangeable that the landlord is the only stable point of contact who must take some responsibility for the actions of those who are increasing his income.
Councils also have the powers to use ‘Works in Default’, which in part allows them to clear rubbish from a garden and bill the landlord for it, adding up to 30% admin costs, although few do.
An unworkable proposal
I’ll wait to see the written proposals but as a concept, I think its plain daft and unworkable.
I hope that when or if it comes in that my crew aren’t drafted in to do the necessary. I don’t mind a stand-up row with an aggressive rogue landlord but I’m damned if I’m going to be rooting around in his bins at midnight.
Hi Ben hope you are well. Regarding bins and etc if you search engine ‘ Government Confirms Extension of Mandatory HMO Licensing ‘ the landlord association has further details from the goverment response to their hmo consultation last year. And included in it is the reference to the bin issue ( think ) to save you the bother of looking at it here are the relevant quotes ‘
‘ Refuse disposal and storage facilities in licensed HMOs
The Government will introduce a mandatory condition in HMO licences requiring the licence holder to comply with their local authority scheme (if any) for the provision of facilities for the proper disposal and storage of domestic refuse.
These directions will prescribe the numbers and use of receptacles for the storage and disposal of domestic waste generated from the HMO.
They accept that the issue of rubbish collection is not within the control of the landlord and there is no intention to require landlords to perform functions which are the responsibility of the local waste authority.
However, securing the provision of suitable facilities for disposal and storage of refuse is, in the Government’s opinion a fair and proper responsibility for the manager of an HMO.’
Hope that helps.
I think the Government’s published response goes into more detail, and provides a much more workable proposal than the poorly worded press release said:
“The Government recognises that overfilling bins and rubbish dumped inappropriately is not only a visual blight, but can attract vermin and cause health issues. The more people living in separate households in a building, the more domestic rubbish is going to be generated from that building. Whilst tenants are responsible for properly disposing of their rubbish, they need adequate and accessible receptacles to do so.
We accept that the issue of rubbish collection is not within the control of the landlord and there is no intention to require landlords to perform functions which are the responsibility of the local waste authority. However, securing the provision of suitable facilities for disposal and storage of refuse is, in the Government’s opinion, a fair and proper responsibility for the manager of an HMO.
Although we acknowledge that the management regulations cover refuse disposal, regulation 9 is reactive because it is only concerned with situations where the facilities are deemed by a court to be inadequate, if the local authority has chosen to prosecute. A condition of a licence, on the other hand, would proactively require the provision of adequate facilities in the first instance.
We, therefore, propose to include a mandatory condition in all HMO licences (mandatory and additional) going forward, relating to the provision of suitable facilities for refuse storage and disposal.”
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/670536/HMO_licensing_reforms_response.pdf
Thanks guys, I couldnt find a single thing online when I looked. It is clear then that the landlord’s responsibility is simply to provide enough relevant bins and only for HMOs.
Its an interesting angle. Many council’s use intelligence from the bin departments to identify overcrowded properties, which at the moment arent always HMOs, although this will change a lot in April when the new definition comes in and accordingly some rogue landlord’s deliberately dont ask for more in case it sends up a signal flare.
I can see cosmetic changes on the horizon. Many HMOs in certain areas of London have small front gardens which under these regulations will mean that the entire space will be given over to bins, especially in areas that separate out recycling stringently. Mind you. if its a choice between bins and rubbish on the ground, fair enough.
Thinking legally, when they say “proactively require the provision of adequate facilities in the first instance.” I wonder how they will quantify “Adequate”? 1 bin per 2 occupiers perhaps?
Nice little earner for the councils too. Around my way a replacement bin is £72