What a difference a year makes
Since it was first tabled in 2015, Labour MP Karen Buck’s private member’s Bill calling for standards on fitness for human habitation in rental properties had been talked out and shunned by government on different occasions.
Some people, including other MPs, put down the fierce resistance against the Buck Bill presumably due to the fact that one in five MPs from all parties, are landlords and were as a result against it for their own self-interest.
Don’t get me wrong here. I’m not mentioning this because I think the reason many opposed the bill is because they are landlords, I’m saying it is because they are career MPs, a group of people who many of us would trust about as much as they would George Galloway running a charm school.
Something changed everything
But while Karen Buck spent 2 years shouting into a gale force wind, Grenfell Tower happened and even the most hard-nosed of politicians took a step back.
With the fallout from that tragedy still rumbling on in the front pages of the media and the complete incompetence of the council and government to make life better for the displaced residents, the post-Grenfell “Homes (Fitness for Human Habitation and liability for housing standards) Bill”, would be a hard one to continue to oppose for any politician, not just those who with a self-interest set at “Trump-level”.
The bill was passed
So it was perhaps unsurprising that with cross-party support and also the backing of the RLA, NLA and ARLA among others, the Bill was finally passed on Friday morning.
In case you missed it she isn’t proposing a whole new law as such, just some tweaking, extending and streamlining of principles already established in, Section 8 (1) of the Landlord and Tenant Act 1985 which reads:-
“(1) In a contract to which this section applies for the letting of a house for human habitation there is implied, notwithstanding any stipulation to the contrary:-
(a) a condition that the house is fit for human habitation at the commencement of the tenancy, and
(b) an undertaking that the house will be kept by the landlord fit for human habitation during the tenancy”
The trouble is
While that law has been in for 33 years its use was restricted to properties where the rent does not exceed £80 per year in London or £52 per year elsewhere, Such figures were set in 1957 and have not changed since that time.
The accepted stats are that between two and a half to three million people live in properties with hazards rated as Category 1 under the Housing Health and Safety Rating System, meaning there are conditions within those properties that present a serious risk to the health and safety of the occupants.
I should stress
This means any rental property, not just privately rented so this new Bill will likely have difficult financial implications for councils and housing associations, whose record on repairs and maintenance is often pretty damned poor, even when we aren’t referring to fire-proof cladding.
The cost of compliance when you have a housing stock running into the tens of thousands, is going to present some interesting challenges.
But don’t the council prosecute for building standards?
I hear you ask.
Yes, they do but the Buck Bill will allow tenants to take out private prosecutions against landlords whose properties don’t meet the mark, and the HHSRS is prosecuted by the council so councils as landlords aren’t covered because you can’t sue yourself.
In researching this piece I read the entire debate, you too can read it here.
Something I have never done before and whilst it was clear that there wasn’t a single dissenting voice from the different parties or even a ‘Yes but’ at any point, I was surprised at what a bunch of windbags most politicians are.
Had I been sitting in the public gallery I don’t think I would have been able to stop myself shouting:-
“Get to the point!”
Amid all the congratulations and back-slapping, not to mention innumerable mentions that it was the speaker’s birthday.
Numerous calls were made for local authority enforcement teams to take more action on poor property conditions in the PRS. Lib Dem MP Edward Davey called on government to:-
“Monitor and compare authorities to establish which of them are going after the rogue landlords, and should name and shame those that are not”.
While Labour’s Matt Western diplomatically pointed out that it:-
“Is so often the case, the powers may exist, but the first cuts that are made in local authority budgets are those that prevent them from enforcing their existing powers”.
A comment supported by Conservative Lucy Allan but questioned by Tory Kevin Foster who said that his constituency of Torbay in Devon had levied penalties of £30,000.
Kevin, I’ve been to Torbay and it ain’t Walthamstow mate. I doubt the ratio of slum properties to enforcement officers is in the same league.
Interestingly
Chair of the CLG committee Clive Betts said something I think is probably true:-
“Most members of the public, if they were asked, “Should landlords be able to let properties that are unfit for tenants to live in?”, would say, “Of course they should not, but the law prevents that, doesn’t it?”.
Certainly my non-housing mates are always surprised to hear it.
So there you have it.
Everyone agrees that the Bill is now a good idea, whereas before Grenfell it wasn’t. As I said at the start of this article, what a difference a year makes.
The fine details of how it will work need to be hammered out and Giles Peaker over on Nearly Legal has been heavily involved since the outset, so he will no doubt be right on the money as the Bill works its way into a law.
Well done Ms Buck.
The only issue I have ever had with this bill is that I don’t trust “them” to get the fine details right and to define “fitness for human habitation” in a way that does not result in high legal costs for landlords. (For example, how do I prove it was the tenant’s live-in boyfriend that broke all the doors. Yes I had this in real life more than once with the same tenant.)
We come back to the same issue yet again until the court system is funded at a level that allows cases to process at speed and without errors, new laws will be of limited benefit to most people….
What difference would the bill have made to Grenfell?
@Ian that law all over though. There isnt a single law that is worded in such a way that a written breach isnt open to challenge.
I have just come back from spending the whole day at a conference in the City for Trading Standards officers prosecuting letting agents, attended also by ARLA, NALS, some letting agents and landlords as well and listened to a very interesting talk from barrister Daniel Brayley from Gough Sq Chambers explain a recent Foxtons prosecution by Camden council over poorly worded fee provisions which were deemed by the courts too wishy washy because the phrase “A fee could cover” was not explicit enough about exactly what that meant……and that’s law all over, fine details argued to death but with very specific meanings which have to be clarified on a case by case basis.
All new laws need clarifying through cases that go through the higher courts. It took Spencer v. Taylor 25 years to point out that we all, advisers, solicitors, barristers and judges had been getting s21 4 (a) notices completely wrong for a quarter of a century.
@Nick I’m not saying the Buck Bill would have prevented Grenfell, it hasnt even been drafted yet, my point was that post-Grenfell everyone has been acutely aware of property conditions for renters and as a result the Buck Bill has met less resistance than it previously had. Perhaps the only good thing to have come out of that sad, sorry mess, that, lest we forget is still continuing, while government still back an enquiry judge completely mistrusted by the residents support groups and the council are still squabbling about where to point the finger
While I fully support the idea of the Bill, as a landlord that has experienced several HHSRS inspections over the years, I have found the HHSRS definitions of Cat 1 hazards open to wide interpretation and a complete lack of consistency in grading by local authority assessors.
ie the ‘lip’ on the threshold of a a upvc door is not a CAT 1 hazard but a step of the same size on the path is? Lack of external lighting is a Cat1 hazard because the Council street lighting is apparently not reliable enough as they have ‘outages’, The uneven paving slabs leading to the front door on an ex council house are a Cat 1 hazard requiring the digging up an laying of a concrete path – yet all the neighbouring council owned properties in the same street with identical paved paths are ok!? The flow and return pipes to radiators should be boxed in as they are hot, yet the radiator – that is the same temperature – is ok to be exposed, that the buckled laminate flooring was down to the tenants letting their dog wee repeatedly on the floor …. I could go on and on.
I object to the reality that tenants will get legal aid or ‘no-win-n-fee’ representation while landlords are left to try and defend themselves at great expense against unreasonable HHSRS assessments – risking huge fines and banning orders in the process..
For me there are too many areas of grey in the HHSRS assessment process such that virtually every property could be found to have a Cat 1 Hazard of some kind or another if you go by the reports I have experienced. Is it the case that every property should be pre-assessed by an ‘expert’ prior to letting in order to gain ‘pre clearance’? Much like an MOT? And will landlords be given the powers to prosecute for criminal damage the tenants who wilfully trash their properties?
Just like the Grenfell and more recently the social housing landlord that was not prosecuted for the numerous breaches in Gas Safety, it is often the Councils and big players who are the worst offenders and the average landlord with a couple of properties that gets clobbered. What does this really do to tackle the slum landlords who house illegal immigrants etc who are not going to raise their head above the parapet and take action against their landlord?
It’s all another reason to leave the PRS all together or do your property up like a palace and no longer let to people with pets, LHA, mental health problems, mobility problems, more than 2 children etc. Leave the Councils to try and house them all and deal with the problems that come with them.
There were and already are laws in place to supposedly prevent Grenfells etc. Politicians should look towards better enforcement of the powers they already have, a better system than the current HHSRS for grading hazards and show a level playing field by prosecuting Councils and Housing Associations too.
Blimey KT I worry about the state of your properties if you have been subjected to so many HHSRS Cat 1 notices over the years. That’s very unusual.
Your comment spirals off somewhere in there, makes many legal errors and misses some points.
Firstly I will agree that the HHSRS is a bit all over the place and your concerns are shared by the officers who have to use the system, as I wrote on this very blog a week or so ago
https://landlordlawblog.co.uk/2018/01/09/housing-health-safety-rating-system/ Recommendations are being made by EHOs to provide clearer standards.
Your analogy to MOTs is an interesting one and seems the likely outcome of the Bill if passed but what is wrong with that? Would you not expect, as the purchaser of a car that it be road-worthy? Why should a home be any different? When purchasing a property a survey is necessary to establish whether or not the property is sound, why should a tenant be denied the same right?
You ask if landlords will be given powers to prosecute tenants for criminal damage. You already have those powers. Anyone can sue anyone for criminal damage and Schedule II of the Housing Act 1988 gives the landlord powers to evict tenants for damaging their property or even simply allowing the condition to deteriorate, plus you can draw down on the deposit.
Councils are indeed often guilty of poorly maintained properties but as I say in the article above, the prosecution powers for property conditions lies with the council and even a non-lawyer would understand that it is not possible to sue yourself, which is why the Buck Bill will seriously impact upon local authorities as well.
The ‘Level playing field’ that you end your comment on is exactly what the Buck Bill aims to achieve.
It is a shame this bill is aimed at allowing tenants, who I suspect tend to shy away from courts, to take their own action.
Food Safety Law makes it an offence to prepare food in a dirty kitchen AND an offence for not to cleaning the kitchen when told to do so by the Council Officer
Health and Safety at Work law makes it an offence to operate an unsafe system of work AND an offence not to make the system safe when told to do so by a Council Officer (or HSE officer)
Currently, (Criminal) Housing Law doesn’t make it an offence to rent out a property that has multiple Category 1 hazards, the only offence is when those Hazards are not removed when told to by a Council Officer
With regards the worry raised by Ian in the comments of a Tenant making life rough for a landlord by claiming self inflicted disrepair is Landlord disrepair, this could be avoided by allowing prosecution by Councils (I know, there is not enough resourcing there at the moment), so that the tenant contacts the Council about the internal doors and the Council Officer has to determine the cause and solution. It may be the landlord still has to replace the doors to avoid a Category 1 hazard but if the Officer determined it was self-inflicted no prosecution would follow for the doors being in the damaged state.
it would be a much more powerful Act if it brought Food Safety and Health & Safety principles into the Housing realm.
I don’t know the statistics, but how many tenants, especially those that would be regarded as vulnerable, are able to take Tenancy Deposit claims without having to chase the services of CAB, Shelter etc (who are also resource poor), putting the duty onto the Tenant to take a private case in will put more pressure on those services and deter many.
Also, if successful will it be a civil prosecution or a criminal one, because if it is a criminal one, and the landlord fit and property person definitions are changed, then a landlord not doing repairs when they are due, rather than when told to do so by the Council, could affect their ability to hold Licences (Mandatory, Additional or Selective).
Alan I think you made your own point in your comment about food safety and health and safety.
I have raided many a take away with food standards officers (looking at the residential accommodation above) and unless a food outlet is way over the top the owner will simply be given notices to sort their act out.
Officers later return to ascertain if the works have been done. If the owner ignores the notices or doesn’t clean up sufficiently well then they get prosecuted and or closed down, which is fair enough. Would you want to eat there?
Same with HHSRS, unless the hazard is so bad that an emergency probation notice has to be served. I have worked alongside EHOs nearly all of my working life and I am often surprised at how much slack they cut landlords, often to my annoyance and frustration but I’m a bit of a zero tolerance type when it comes to rogues.
EHOs are very reluctant to close down a property if for no other reason than if the council shuts one down the homelessness unit has to pick up the displaced persons. I was once embroiled in what the fire brigade call an “Article 31 closure” of a derelict pub housing 27 families, all of whom were suddenly homeless that day and eligible for homelessness assistance.
On your point about assistance with deposit protection claims CAB, Shelter etc provide advice on how to recover a deposit but I don’t think they go any further than that. I know the CAB definately dont because they dont do case work. My outfit, Safer Renting, will obtain injunctions for illegal evictions and harassment, defend possession cases in court and prosecute landlords under the PFEA but even we don’t do deposit claims for tenants because they do them for themselves.
Hi Ben. Its all very well to claim on the deposit but a tenant wrecking the boiler alone can cost more than the deposit in many areas of the country. Let alone smashed windows or wrecked kitchen. SO really the deposit is really only useful for careless accidental damage really.
Plus as one of the above posters pointed out a social landlord aparrentl;y failed to get 1000 gas checks done with no consequence yet if a private landlord failed with just 1 property would be in deep trouble. If you do not believe the story just search engine ‘ Luminus non-compliant over governance and gas safety failures’. As I have said many times given at best social landlords are only 2x better in standards than private you sure see more than twice the amount of bad headlines towards private compared with social landlords.
Food officer and H&S officers also have the option to prohibit, but even if they don’t prohibit, they can still prosecute for the condition.
I apologise for my previously slightly rambling post but I will try illustrate my my key point better.
I believe that HHSRS is so ambiguous that a well meaning EHO can arrive at a property and make out a pedantic wishlist of nice-to-haves under the catch-all of “Heath and Safety’. The problem is that tenants can then take a landlord to court on the back of such reports.
I am all for providing nice houses for our tenants, all of which are families or tenants on long tenancies. All my properties are well maintained and I would be content to live in any one of them with my young children.
But time and again, even through trying to do the right thing, it is possible to find yourself butting up against inflexible and biased Council officials who always seem to take the side of the ‘poor innocent’ tenant. Regardless of whether that tenant owes 000’s in rent and has trashed the property or not.
I object to the tenants that wilfully trash properties and the claim neglect by the landlords. Insurance does not cover damage by ‘permitted occupiers’. In the last 15 years I must have lost tens of thousands in rent unpaid by LHA tenants, many of whom I agreed to take on because they had a social worker helping them etc – ie they were vulnerable and in need. Virtually all of them trash the houses putting holes in walls, busting doors off hinges, leave piles of rubbish in the garden with plenty of anti social behaviour thrown in.
Now I don’t for one minute think that all tenants are bad or all landlords are good and I’m sure you have seen plenty of rogue landlords where as I, as a well meaning and conscientious landlord (hence why I read this site) have only repeated experience of rogue tenants. Tenants where a measly £400 deposit goes nowhere to fill the hole in rent arrears, court fees or in damage to the property.
After pursuing a debt of over £3000 through the courts, I have an offer of payment of £1 a MONTH – from someone that receives over £1666.00 a mont his benefits alone. That is the court and justice system you say is at a landlords disposal to recover losses.
All my encounters with EH officials have come from social workers visiting families that are perpetrators of the mess they choose to live in. Time and again, showing the photographed inventory with the detailed condition of the property at etc time of check-in is not enough to satisfy these officials that perhaps the tenants have caused the damage, removed the smoke alarms etc.
While the intent behind all this legislation is commendable, the unintended consequences will be the removal of more PRS housing stock previously available for LHA tenants. Why take the risk of having to defend yourself in court against tenants funded by legal aid for issues either they themselves have caused or a frankly so bonkers that virtually every property in the county would be condemned as dangerous if the same metric was applied?
Instead, I like many others will choose to rent nice properties to nice working families who will appreciate a nicely maintained house with a long term tenancy under a professional landlord that does not charge fees as letting agents do.
You always seem to vilify landlords as a group without seeming to recognise the cost of tarring everyone with the same brush. I think the figures speak for themselves – homelessness goes up because Councils do not work with or support PRS landlords. Therefore landlords don’t take on LHA tenants – they can’t make us!
Rogue landlords persist because unfortunately they always will for as long as tenants are desperate for a roof – the alternative being homeless. Defeat the rogue landlords by increasing housing stock to give tenants an alternative. The system is broken and I feel for the low income families that must bear the brunt of the misguided policy making.
No doubt you’ll do your usual picking, dissecting and dismissing of points I make but the key thing is that I am not a rogue landlord by any stretch and can easily rent to working professionals who happily choose to live in my well maintained houses. This legislation is just another reason why I will no longer rent to LHA tenants – extrapolate that across the country and let the Councils watch the homeless figures rise further and rogue landlords flourish in the desperation of those unfortunates caught up in the whirlwind.
@KT I’m genuienely saddened that you think discussion and counter viewpoints is merely picking, dissecting and dismissing points and I am equally saddened that in the years I have been reporting from the frontline on this blog still nobody understands that I am speaking about a shadow world of the most awful people, not the kinds of people who read Tessa’s blog and people occupying properties you wouldnt keep a dog in.
In what must be about 7 years of writing I have never been able to write a single thing about what goes on in the cesspits where I spend my days without readers becoming offended that I am tarring all with the same brush.
When I read a news story about the actions of some shaven headed white thugs I dont take offence or think they mean me, similarly, my wife, who is black doesnt doesnt get offended by reconstructions on Crimewatch featuring black villains.
Despite being continuously attacked for reporting on the shadow world of criminals, people traffickers, slums, illegal immigrants, violent nutbags and fraudsters where I spend my time, I will continue to write pieces for Tessa on stuff that I think might be of interest to Landlord Law Blog readers, many of whom I know well and always look forward to meeting at the annual conferences and other events. Some even personally email me for advice on dealing with councils when they come up against intractable or daft behaviour from officers, who do exist but as with rogue landlords and nightmare tenants, dont represent all of us enforcement officers.
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HBWelcome has summed it up I think.
I am not averse to counter view points and discussion, I am averse to the focusing on micro while missing the macro.
I understand you speak of the shadow world in which you rightly operate but the point is that this legislation, designed for that world has implications far beyond it.
I’m not saying that you are tarring all landlords with the same brush but this legislation does by giving good landlords very little defence against its abuse.
Good, law abiding members fo the community probably find it hard to understand the motives and moral compass of rogue landlords – exploiting other humans for profit. However, you see it everyday, know it to be true and work tirelessly to raise awareness and stop it – and quite rightly so.
On the flip side, we have rogue tenants who deliberately default on their rent, damage properties, remove smoke alarms etc call in an EHO and using Shelter and every possible avenue of legal assistance open to them to take legal action against a landlord and stay in that property without having to pay a penny in rent while still claiming LHA and other benefits. Many months a £000’s later they are eventually turfed out, playing the ‘poor homeless victim of nasty landlord’ card and find a new home with another unsuspecting PRS landlord sucker where they rinse and repeat.
There are rogues on both sides but all the anti-landlord rhetoric and legislation form the press, politicians and councils with a complete lack of negative consequences to deter such action on the part of the tenants only reinforces the perception that it’s ok to behave like it.
A start might be some balancing legislation like a Rogue Tenants Database. The ability to CCJ a benefit claiming tenant and get an ‘Attachment of Benefits’ as the utility companies can. More specific to this legislation, it would be nice to know that that the EHO claiming expertise in completing the HHSRS assessment has actually done some kind of training in the practical application of the system and will take initial inventories into account when writing their reports. Is that really too much to ask?
I have nothing but goodwill for you and praise for your work. I only hope you can see that legislation such as this is open to abuse which will ultimately see fewer and fewer landlords willing to open their doors to anyone who potentially has so little to lose and much to gain from creating situations where they can sue their landlord for financial gain.
Thanks KT. I admit I do get very demoralised by comments on my posts sometimes. Tessa is very good at slapping me around the face when I need it haha.
Having said that, all laws and regulations brought in to address a cultural and societal problem will impact on other people in some way who dont exhibit the behaviours that law is brought in to deal with.
By way of illustration and I really dont mean this in an “I see more misery than you sense”, at the tale end of last summer I was called to a case in North London where a landlord had visited a property in a dispute over rent and was so aggressive, that that the mum had a heart attack and was rushed to hospital where she was held for 3 days.
While she was in there the landlord ripped out the gas meter, so her remaining husband and 12 year old daughter who was disabled with cerebral palsy, could only keep themselves warm by leaving the door to the electric oven open, until we managed to threaten the guy enough to get him to replace the meter. The hospital would not release the mum until services were restored.
This man was part of a Bulgarian/Romanian Mafia operation.
Laws are brought in to help people cope with people like the guy we were dealing with and if the good people, such as yourself get affected by those laws then as unfortunate as it is I see the reason for that.
But here’s the other angle. One of the reasons the landlord kicked off was because the tenant had moved in other people he didnt know. This doesnt give him the right to do what he did but it illustrates that dealing with landlord/tenant disputes isnt a black and white, tenant good-Landlord bad arrangements and after 28 years of dealing with this stuff I understand that all too well.
Do I think the Buck Bill is a good thing? Absolutely. Do I think that rogue tenants may use whatever the legislation is once it’s enacted to mount spurious claims? Absolutely.
Thats the real world.
Sorry, I meant to add, not the black hat/white hat world simplistic world presented by so many organisations.
Law is an unwieldy business. The fact that some people might use the legislation for their own purposes doesnt mean the legislation doesnt have a good reason for being introduced.
Sorting the wheat from the chaff is the role of the courts as matters progress. The only alternative is a Dirty Harry world of rough justice based on personal grievance, and no I dont mean you. haha
If you go to the Landlord Law Conference in May hook up with me. We can argue over a pint….you’re buying
“A start might be some balancing legislation like a Rogue Tenants Database.”
Landlords already have tenant referencing services available. Tenants do not have any such service available. What youre suggesting would make even more people homeless. This is some of the worst victorian slumlord thinking. Anyone who suggests this should be ashamed.