Following my first article on the new legislation introduced in the Housing and Planning Act 2016 which began on 6th April this is another danger for landlords from tenants going for Rent Repayment Orders.
‘Illegal eviction or harassment of the occupiers of a property’ under this Act is one of the reasons which a tenant can use for asking for a Rent Repayment Order for up to 12 months rent. Illegal Eviction may seem an obvious issue but it is not only about those landlords who change the locks and put their tenants belongings outside of the property – although of course it does apply to that issue – it is also about landlords who remove a tenant who has the legal right to due legal process.
The only way that a tenant can be removed without committing ‘illegal eviction’ is when the landlord obtains a court order which, when the tenant does not leave on the date the court has stated, must then be enforced by a court appointed bailiff unless the tenant agrees to leave and surrenders the tenancy.
Many landlords are unaware that non payment of rent or damages to their properties does not remove the tenants legal rights to occupy – it’s not fair but it is the law.
Even where a landlord is convinced that the tenant has abandoned the property that landlord cannot just assume that he has the legal possession and can re-let it.
At the time of writing we are waiting for a date when the new Abandonment Procedure, also introduced in the Housing and Planning Act 2016, will give us a formal process for removing that tenant without going through a possession process but even then it will take several months to regain legal possession.
One of the big dangers is where a landlord is using a Licence to Occupy Agreement or a Lodger Agreement where in fact the occupier is actually a tenant with all the legal rights which go with that status. Many landlords believe that by offering “services” the occupiers will no longer be tenants.
In an HMO certain services must be given under The Management of Houses in Multiple Occupation (England) Regulations 2006 and therefore do not constitute the extra services required to change the tenants status
Duty of manager to maintain common parts, fixtures, fittings and appliances.
(1) The manager must ensure that all common parts of the HMO are—(a) maintained in good and clean decorative repair;
(b) maintained in a safe and working condition; and
(c) kept reasonably clear from obstruction.(2) In performing the duty imposed by paragraph (1), the manager must in particular ensure that—
(a) all handrails and banisters are at all times kept in good repair;
(b) such additional handrails or banisters as are necessary for the safety of the occupiers of the HMO are provided;
(c) any stair coverings are safely fixed and kept in good repair;
(d) all windows and other means of ventilation within the common parts are kept in good repair;
(e) the common parts are fitted with adequate light fittings that are available for use at all times by every occupier of the HMO; and
(f) subject to paragraph(3), fixtures, fittings or appliances used in common by two or more households within the HMO are maintained in good and safe repair and in clean working order.(3) The duty imposed by paragraph (2)(f) does not apply in relation to fixtures, fittings or appliances that the occupier is entitled to remove from the HMO or which are otherwise outside the control of the manager.
(4) The manager must ensure that—
(a) outbuildings, yards and forecourts which are used in common by two or more households living within the HMO are maintained in repair, clean condition and good order;
(b) any garden belonging to the HMO is kept in a safe and tidy condition and
(c) boundary walls, fences and railings (including any basement area railings), in so far as they belong to the HMO, are kept and maintained in good and safe repair so as not to constitute a danger to occupiers.(5) If any part of the HMO is not in use the manager shall ensure that such part, including any passage and staircase directly giving access to it, is kept reasonably clean and free from refuse and litter.
(6) In this regulation—
(a) “common parts” means—
(i) the entrance door to the HMO and the entrance doors leading to each unit of living accommodation within the HMO;
(ii) all such parts of the HMO as comprise staircases, passageways, corridors, halls, lobbies, entrances, balconies, porches and steps that are used by the occupiers of the units of living accommodation within the HMO to gain access to the entrance doors of their respective unit of living accommodation; and
(iii) any other part of an HMO the use of which is shared by two or more households living in the HMO, with the knowledge of the landlord.”
In other words it is a legal duty to keep common areas clean and providing cleaning services is therefore not an additional service and does not change the status of the occupiers who are tenants.
Some landlords rely on the fact that the occupiers do not have “exclusive possession” but again this is a given because an HMO by definition is shared housing and the occupiers only have exclusive possession of their own rooms and possibly an ensuite/bathroom.
Since the famous Street V Mountford (1985) case several other cases have gone to court in order to establish the difference between a Tenant and a lodger/licensee. In all of these cases the issue of “exclusive possession” has been the main point of contention. The title of the contract has been irrelevant only the facts of the occupation have been taken into account and in fact in one case, Antoniades v Villiers (1988) the landlord lost on the basis that the contract “was merely a pretence intended to evade the Rent Act”
Offering meals would constitute an additional service but this is regulated by the Hygiene and Food Safety Regulations.
An HMO where the owner/landlord is not living as his prime UK residence and there are no staff living in to care for the occupiers, with no services other than those which the law requires – is a property occupied by tenants.
The use of Licences to Occupy or Lodger Agreements will not change the status of the tenants and if a tenant is removed without due legal possession proceedings that tenant would then have a great case for Illegal eviction and a Rent Repayment Order.
A reminder that, as I said in my first article, this does not need a court case, nor a local authority to be involved it only needs to go to a Property Tribunal and the No Win No Fees guys will be queuing up to help the tenants.
Source:
- Illegal eviction or harassment of the occupiers of a property under section 1 of the Protection from Eviction Act 1977 the legislation
- Rent repayment orders under the Housing and Planning Act 2016 – The Statutory Guidance, published on 6th April 2017.
- The Management of Houses in Multiple Occupation (England) Regulations 2006
- Hygiene and Food Safety Regulations
