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Can councils insist on improvements to privately rented properties?

30th May 2018 by Rob Kelly

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In a decision of great significance to residential landlords, the Court of Appeal has given guidance about the scope of local authority powers in relation to the licence conditions that may be included within licences of houses in areas of selective licensing under Part 3 of the Housing Act 2004.  Part 3 of the Housing Act 2004 permits local authorities to designate their areas, or parts of them, as areas of selective licensing if they are satisfied that certain criteria are met.  In an area of selective licensing, private houses let as separate homes must be licensed and the authority may include in a licence “…such conditions as [they] consider appropriate for regulating the management, use or occupation of the house concerned”.

In Brown v Hyndburn Borough Council [2018] WLR(D) 115, the local authority had included two licence conditions in all their Part 3 licences requiring private landlords to install carbon monoxide detectors and to ensure that their premises were covered by a valid Electrical Installation Condition Report.

One affected landlord’s properties all complied with these particular conditions but his concern at the principle of an authority, by means of licence conditions, seeking to require landlords to upgrade or improve their properties and/or to provide completely new equipment and facilities, prompted him to commence proceedings to challenge the authority by way of an appeal against both conditions.  The First-tier Tribunal agreed with him that the council had no power to include either condition.  On the authority’s appeal, the Upper Tribunal disagreed and reinserted both conditions into the licence.  The landlord then appealed to the Court of Appeal.

The Court of Appeal upheld the landlord’s appeal.  The conditions went beyond regulating the management, use or occupation of relevant premises, and the Housing Act 2004 did not empower councils either to require upgrading of private rented properties or to dictate the facilities and equipment that should be available within them.

If you would like further information about this article please contact Mark Timberlake or Rob Kelly.

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Questions relating to this article should be addressed directly to the author.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 755217

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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

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