You would think that by now there would be a clear and simple definition of a landlord, given the job has been around for time immemorial and in modern housing law terms at least since 1925 but nope….this is housing law we are talking about.
The standard dictionary definition is:
The owner or possessor of an estate in land or a rental property, who, in an exchange for rent, leases it to another individual known as the tenant.
Fairly simple and easy to grasp there but when it comes to practice things can and do get messy, a mess that is exploited by criminal landlords and agents to their own advantage, who can be a landlord when it suits them and nothing to do with the property when it doesn’t.
So here’s an example
I was recently training a homelessness unit, where a group of the delegates ran the council’s temporary accommodation section.
They had, in the customary manner, procured properties from landlords and used their own stock, mixing and matching as needs arise. Obviously, when their own stock is used they are indeed the landlords but some of their properties were under a Private Sector Leasing Scheme, where the owners leased the property to the council for 5 years to use as they saw fit, on the basis that the council were responsible for all repairs.
You see this all over the place but sometimes the council draws up a licensing contract with the owner and sometimes the council is listed as a tenant themselves and not with a commercial contract.
The council cannot be residential tenant chiefly because to be a residential tenant you have to reside in the property, which they clearly can’t.
Are they even the landlord of the occupants?
If rent or HB is given to the council who then pass it on to the owner does that not make them a managing agent?
Section 7 of the Protection from Eviction Act 1977 defines an agent as:-
(a) any agent of the landlord named as such in the rent book or other similar document, or
(b) the person who receives the rent of the dwelling,”
Suggesting that in Private Sector Leasing arrangements the council could be the agent while the owner is the landlord, despite the council’s contracts stating that they are the landlord.
Equally common is for letting agents to give contracts to the occupants detailing themselves as the landlord. This often cuts both ways, in that they will claim to be the landlord when it comes to applying for possession orders but when being leaned on by enforcement teams over repairs will point the finger at the owner as the person with responsibility.
I have dealt several times with a ‘For-profit housing association’ who lease properties from private landlords and act as landlords in all matters relating to the occupants, except when it comes time to carry out repairs, then they refer to the owner and despite officially being a housing association never use the Rent Arrears Pre-Action Protocol required of all social landlords, preferring at such times to simply call themselves the owner’s agent.
The Civil Procedure Rules and the case of Chesters Accommodation Agency v. Abebrese (1997) tells us clearly that a managing agent cannot sign a Statement of Truth, which is required for all court paperwork in possession cases and I have successfully defeated possession claims brought by agents on several occasions using this as an argument. So identifying who the landlord is, becomes very important when dealing with possession orders.
Judges often don’t enquire whether the agent who has taken the action is actually the landlord. Sometimes they are because they also own the property but often they don’t and the court grants possession anyway. In such cases, we have to apply to have the possession order set aside after it has been granted.
HMO’s are just as challenging
HMO licensing throws up interesting challenges as well Section 72 of the Housing Act 2004 states:-
‘(1) A person commits an offence if he is a person having control of or managing an HMO which
is required to be licensed under this Part (see section 61(1)) but is not so licensed.
It doesn’t mention ‘Landlord’ but instead opts for “A person having control or managing’.
The predictable “Not me Guvnor” finger pointing always makes itself known when licensing enforcement comes around but as you can see from the wording, it offers no protection, thanks to the looser wording, although it doesn’t stop them trying.
Friday’s case for example
Owner of property lives in Pakistan, he uses Fred Smith Lettings based in the high street to source a tenant for this three-bed family home. Fred Smith Lettings also get property licensed with the local authority but under someone working for Red Rose Lettings, who have no other involvement other than to be the license holder.
Fred Smith source the ‘Tenant’, who advertises online and puts 5 families in the single-family home, under the management control of Bluehouse Estates, a company based in Bulgaria who advertise properties through a facebook page in Bulgarian and use some guy who the occupants only know as Boris, when they have a problem with the boiler and all you have for Boris, is a mobile number.
Bluehouse serve an invalid s21 on one of the 5 families, who go to the council for advice, at which point the property comes on the enforcement radar and the threats against the tenant’s start. Boris visits the property and introduces the occupants to Anya, who he tells them is their new landlord and so on.
Not made up and such setups account for 9 out of 10 cases I deal with these days, although real names withheld and this “Who is the landlord, who is the agent” game rolls on.
But there are options here
The first task is to revoke the license, then go against either the owner or the persons’ with “Control”. Whilst Bluehouse are playing silly buggers in Burgas, Fred Smith Lettings is based in the High Street and thanks to the recent case of LB Camden v. (1) Leycam Ltd, (2) Citydeal Estates (London) Ltd (2018) can still be in the frame as a managing agent, even though they didn’t take any rent other than the initial rent in advance.
The looser definition in the Housing Act 2004 is not so useful when it comes to doing the Rent Repayment Order, where the FTT want to clearly identify who should put their hand in their pocket and all these musical chairs can create serious problems.
I’m following closely the passage of the Sublet Property (Offences) Bill, up for a second reading to see how this might impact this nonsense.