Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

Oxford HMO Licensing

Further to our recent posts on the subject of additional HMO licensing in Oxford the Executive Board and the Full Council met today to reconsider the proposed HMO licensing scheme.

A new report was placed before the Board which made alternative recommendations as regards the additional HMO licensing scheme. We are not currently sure as to whether this report was approved but it is likely that it was.

In short, the Council is proposing to withdraw the original HMO licensing designation it made in July and to make 2 new licensing designations. The first of these will come into force on 24 January 2011 and will require licensing of three storey properties containing three or more occupiers and all two storey properties containing five or more occupiers. The second designation will come into force on 30 January 2012 and will require licensing of all other HMOs as well as some s257 HMOs (properties converted into flats not in accordance with the Building Regulation 1991). While the Council denies that it ever intended to phase in licensing the report asserts that the new designations will avoid ‘confusion and uncertainty’.

The report recognises the need to ensure that the fees charged for the scheme are not more than those required to run the scheme and that any extra must be returned by future fee reductions.

The report also accepts that it is not lawful to impose blanket licensing conditions on all properties and that a ‘one size fits all’ approach is unacceptable. Therefore the original plans to impose standard licence conditions on all properties are to be scrapped.

It is interesting to note that there is also now a recognition that the licensing scheme has been promoted as solving all HMO-related problems and that it simply cannot achieve the high level of expectation that has now been built up. The Council has not made clear how it intends to deal with this issue.

While some Oxford landlords will, no doubt, be disappointed that the licensing process will be going ahead the changes give far more time for landlords to make changes in the manner in which they let their properties if they wish to avoid licensing and also reduce some of the more onerous burdens on landlords who do elect to licence their properties. PainSmith Solicitors are pleased that Oxford has recognised the limitations of HMO licensing and the limitations on its powers and hope that other local authorities will give very serious consideration to the appropriateness of these schemes and their method of implementation.

Filed under: England & Wales, England only, FLW Article

Housing Amendments in Northern Ireland

We have not looked at Northern Ireland for some time now, since the introduction of the Housing (Amendment) Act (Northern Ireland) 2010 in fact.

Therefore we felt we should take a look at the (slightly unimaginatively named) Housing (Amendment) (No.2) Bill which is currently in committee stage in the Assembly until the end of January 2011. Back at the start of the year we mentioned that a consultation on a draft version of this bill was underway. This new bill is part of the product of that process.

The new amendment bill seeks to amend the Private Tenancies (Northern Ireland) Order 2006 which controls the majority of private residential tenancies entered into in NI.

There are three key changes:

  1. The need to provide a statement of tenancy terms will be abolished and this information will need to be placed into the rent book.
  2. There will be am introduction of a tenancy deposit protection scheme along the lines of that operated in England and Wales.
  3. There will be a new ‘light touch’ registration scheme for landlords.

There are a number of other provisions such as the creation of a power to demand evidence of family relationships to assist with regulation of HMOs and also extending the ability to regulate rent in relation to properties subject to rent control.

Interestingly the draft bill does not allow for tenants to enforce the non-registration of a tenancy deposit by seeking a civil penalty as is the case in England & Wales but rather makes a failure to properly register a deposit a criminal offence with a fine limited to a maximum of £2,500. There is an ability for landlords who have failed to register a deposit to avoid full court action by simply paying a fixed penalty fine equivalent to three times the deposit. This seems a little steep given that the maximum fine on attending Court is only £2,500. Additionally, the Assembly has not followed the proposed system in Scotland carefully enough and has also failed to learn lessons from the English experience. Therefore it has focused on protecting the deposit within 14 days of receipt. The issue of receipt has caused immense problems in England & Wales and is a glaring loophole in the system. There is still an opportunity for the Assembly to rethink this issue and it should be taken.

All posts on Northern Ireland specific topics can be found here.

Filed under: FLW Article, Northern Ireland

Quango Cuts

The final list of the public bodies to be culled in the widely trailed cuts in quango’s put forward by the Coalition Government has been announced today. The full (28 page) list is available here.

Notable losses include the Office of Fair Trading on which a consultation is to be launched in the New Year and the Tenant Services Authority. Both of these are to be merged into other bodies and some of their powers are to be abolished altogether.

The Valuation Tribunal, Residential Property Tribunals, Rent Assessment Committee, Leasehold Valuation Tribunal and possibly the Agricultural Land Tribunal will join other tribunals as part of the Tribunals Service.

The Land Registry is to be retained but with increased private sector funding (presumably this is code for a partial sell-off).

The Leasehold Advisory Service (LEASE) remains under threat and the National Tenant Voice is to be abolished.

The Independent Housing Ombudsman is to be retained.

Interestingly the Legal Services Ombudsman, which only opened its doors on 1 October is to be closed again almost immediately.

Filed under: England & Wales, FLW Article, Northern Ireland, Scotland,

HMOs and Planning- Judicial Review

We have just been informed (thanks, Chris) that Milton Keynes Council has launched a judicial review of the decision by the new Coalition Government to make a further amendment to the General Permitted Development Order (GPDO).

As most of our readers will know the previous government introduced a new C3 planning use class which was designed to deal with HMOs. Movement from the C3 use class (for ordinary residential dwellings) potentially required planning consent while movement the other way did not require consent as it was permitted under the GPDO. This was an unpopular move and therefore the new coalition government has made a further change to the GPDO to permit movement from the C4 to the C3 use class. Accordingly, the announcement of the publication of the amendments to the GPDO came was made on 8 September and came into force on 1 October. All our posts on this topic can be found by following this link.

Milton Keynes Council is unhappy about the change which prevents them from regulating HMOs in their area through the planning process. At a meeting on 8 September they resolved to challenge the change on the basis that there was insufficient consultation and that the consultation was based on a decision that had, in effect, already been made. This has been done and, according to the Council’s press release consent has been given and the Government has until 8 October to file a defence.

One of the things the Council is seeking is an injunction suspending the operation of the order and they are also ultimately seeking that the change be quashed. This would of course mean that planning permission would potentially then be needed for changes from the C3 to C4 use class. The Council is also seeking a change in the legislation to allow them to opt-out of the permitted development order (called an article 4 direction) without the risk of having to pay compensation. Therefore it seems likely that, even if they were to lose the judicial review application, the Council will seek to make an article 4 direction in their area so requiring Milton Keynes landlords to seek planning permission for C4 use.

At this stage it might be wise for landlords who are letting under the C4 use class to seek a certificate of lawful use from the relevant planning authority which will legalise their actions.

Filed under: England only, FLW Article, ,

Guidance on Tenant Mortgage Protection

The Department for Communities and Local Government has published new guidance on the Mortgage Repossessions (Protection of Tenants etc) Act 2010.

As we have stated in previous posts this new legislation, which came into force today, 1 October 2010. The Housing Minister has made a short statement on the introduction of the new Act.

The guidance document is aimed at tenants who are facing eviction by a mortgagee and any agent approached for advice by people in this unfortunate position should be directed to the guidance document as a first port of call.

It is good practice for agents to require landlords to provide them with evidence that the mortgagee has assented to the letting of the property. There is possibly scope for a tenant to seek redress from an agent who has failed to do this.

You can see all our posts on mortgages by following this link.

Filed under: England & Wales, FLW Article

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