HMO inspection disaster

[SAWNOAK]

I recently have had a tenant/HMO inspection disaster.

I own a property that was due for an inspection and was asked by the HMO office to notify my tenants. I was able to contact and advise all but one of the ocupiers, and so left a note to advise him. The inspection was carried out on all but the accommodation rented by missing tenant. The HMO officer insisted that I open the door to this flat, and I agreed reluctantly after he said that I was obstructing him. To cut a long story short, the tenant was asleep inside and denied I had given him advance notice, The HMO officer did a quick disappearing act, now I’m apparently to be prosecuted by the Council’s tenancy relations office for trespass, and then, no doubt sued by the tenant.

My experience should be a lesson to all, Give the HMO people only the help required by the 2004 Housing Act, Give them the names of the tenants and let them do what they are paid to do, that is, make there own visiting arrangements with the occupiers themselves.

I would welcome any comments, and has any one else had problems with these HMO people who in the main seem to be a bunch of arrogant b******s.

[red40]

OK lets take one step back here, what was the purpose of the inspection?

Was it an inspection because one of the tenants wanted action for disrepair or was it an inspection under the Housing Act 2004. If the HMO guy sent you a letter it should advise you somewhere why they need to inspect.

Clarify that and we maybe able to assist.

[SAWNOAK]

The purpose of the visit is described as The Housing Act 2004: Licensing

No Complaint about the property condition or requests for repair has been made by any of the tenants.

[jeffrey]

So why would Council prosecute owner when it was Council which demanded entry?

[red40]

So no reference was made to Part 1 or the Housing Health and Safety Rating System? If not, I would be contacting the council advising them that you where asked to do something that is against the law and they may wish to change their policy. Only they can enter the room if they have a valid warrant.

So no its not obstruction.

[SAWNOAK]

Good question, I have spoken again to the HMO officer concerned who has denied that he was requiring access and said that he was acting on my behalf. He has also said that he cannot get involved with arrangements made between landlord and tenants. The Tenancy relation’s officer has said that he has received a complaint from my tenant and must act upon it. I have to go to see him for an interview.

[jeffrey]

Good question, I have spoken again to the HMO officer concerned who has denied that he was requiring access and said that he was acting on my behalf. He has also said that he cannot get involved with arrangements made between landlord and tenants. The Tenancy relation’s officer has said that he has received a complaint from my tenant and must act upon it. I have to go to see him for an interview.

Take HMO Officer when going to see TR Officer. Keep them in room until they agree.

[red40]

Its the councill to arrange access, hence the reason I asked about the inspection and what type of inspection was it. If it was purely for licensing purposes then fair enough, it appears the HMO officer has landed himself and you in it. You may get a ticking off from the TRO, personally I think if you expalin you know about entering tenants rooms, but you felt ptressurized by the council bloke.

If at any time he spoke about HHSRS or Part 1 of the Housing act, then you have a good defence.

[SAWNOAK]

Council HMO bloke denies pressurizing me and does'nt want to know, other council TRO bloke sounds like he thinks i made it all up! Why would anyone bother being a landlord? it can't be because its easy money.

[SAWNOAK]

Can someone let me know what the legal position is as regards to the following:

Can i insist that Council HMO officers make their own visiting arrangements with my tenants if they wish to inspect - is this legal? and are there any exceptions?

[red40]

If they are wishing to inspect under the Housing Act 2004, they are required by that Act to write to each occupier and the owner before they carry out any of their functions under Parts 1 to 4. If they dont any action will be voided on appeal.

I take it that its to do with licensing, etc.

Dear Sir/Madam

I write further to my recent HMO inspection and I wish to draw your attention to the following points.

a) I assumed that as you where carrying out one of your functions under Parts 1 to 4 of the Housing Act 2004, that you would be making direct contact with the occupants of the property, as you did with me.

b) I make reference to section 239(5) and I quote

'Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours' notice of his intention to do so—

(i) to the owner of the premises (if known), and

(ii) to the occupier (if any).

c) I also wish to draw your attention to the recent Residential Property Tribunals decisions on powers of entry

i) The LB Camden v Evans Residential Property Tribunal (RPT) decision regarding powers of entry from an appeal to the RPT against an improvement notice served by LB Camden. The appeal, which was heard on 29 August 2007, was subsequently upheld; one reason being that no prior notice of entry had been given to the owner or occupier, and

ii) An Appeal against a Suspended Prohibition Order served by Bristol CC was heard on 28 January 2008. The tribunal looked into whether notice of entry had been served on the occupants prior to the property being inspected under Part 1 of the Act. As no notice of entry had been served on the occupiers the tribunal quashed the Prohibition Order.

d) I have no objection to you inspecting the property under parts 1 to 4 of the above Act and I am willing to assist in anyway I can. However can you please ensure the correct procedures are carried out for the purposes of entry to the property.

e) I feel it is necessary to draw the above points to your attention for future reference on, should I say, less understanding landlords

Blah, blah, blah

[SAWNOAK]

As far as my experience goes, and I have HMO properties in three areas in England the common practice for HMO authorities is to give the impression that you are obliged to do the notifying to your tenants. It must save the Councils a huge amount of work and money to get the landlords to do the hard work and must surely mean that most licensing decisions may be invalid. I find this information absolutely incredible.

[red40]

the common practice for HMO authorities is to give the impression that you are obliged to do the notifying to your tenants.

Nope the onus is on the council not you as a landlord, you can also write, but its the councils responsibility to notify the occupants of th property.

The trouble is Sawnoak is that councils dont have the resources, they should but they dont.

There are set procedures councils have to abide by its written into the legislation and yes you are right, from my experience the vast majority of the councils issue invalid notices, be it Part 1 notices or any of the procedures for licensing.

But what the heck, as long as you now know what the legislation says and understand it, what I have said.

[SAWNOAK]

This must mean that when a licensing officer enters rented accommodation that has not had advance notice from him he must be trespassing and if he did this on more than two occasions harassment? The fact that they do not have the money to afford to do these inspections properly does not excuse trespassing, or harassment, do they have some sort of legal exemption? If not, why are the prisons not full of HMO inspectors?

[red40]

They are authorised officers of the council so harassment and trepass, in this instance is not an issue.

[SAWNOAK]

I would have thought that the term “not acting within his legal entitlement” would come into play here, which to my mind means, if an HMO officer trespasses or for that matter harasses, then he has done this as an individual, and must face the same consequences as any one else.

In other words he is no longer authorised as soon as he breaks the law.

[red40]

Well best of British to you with the TRO, hopefully it should all turn out as you hope!

[Bel]

very informative thread

[johnny99]

One more thing to remember.

As well as giving 24 hours notice to both the owner and the occupier, in order to enter the property the inspector has to be authorised in writing.

Section 239(9) of the Housing Act 2004.



(9) An authorisation for the purposes of this section—

(a) must be in writing; and
(b) must state the particular purpose or purposes for which the entry is authorised.

In my opinion, and it is only one person's opinion, the effect of 9(b) and the use of the words particular purpose or purposes and the fact that it mentions the entry would be that a specific authorisation is required for every inspection. The inspector cannot rely on a generic warrant card. Section 243 of the Act goes on to indicate who can sign the authorisation and it has to be at least a deputy chief officer of the authority.

I hope this is of some assistance.

[SAWNOAK]

I have spoken again to the HMO officer concerned who has denied that he was requiring access and said that he was acting on my behalf.

I think that the acting on my behalf bit may play a crucial part in this problem.

Are the HMO people now trying to get around parts of the 2004 Act by saying that they are acting as agents of the landlord and so, do not need to be involved in the notifying of the tenant, as they are following the landlord’s instructions?

[johnny99]

I think that the acting on my/your behalf is a total red herring.

They are not acting as the agents of the landlord, they are carrying out an inspection under the Housing Act 2004 and therefore, they have to act in accordance with the requirements of the legislation and the within the powers granted to them under the Act.

Have a look at the Residential Property Tribunal decisions which red40 refers to. They can be found on the RPT site (www.rpts.gov.uk) There has also been another decision in 2008 by the Vale of White Horse District Council CAM/38UH/HIN/2008/0009 which also gives a bit more explanation regarding the Tribunal's assessment of the powers of entry under the Act. (www.lacors.gov.uk/lacors/ContentDetails.aspx?id=19351) While it refers to an HHSRS inspection, the principles are valid across the whole of the Act.

Amongst other things, the Tribunal notes that:


an inspection is not an "inspection" under the 2004 Act unless the required notice is given or an exemption from notice applies. Therefore the Tribunal is of the opinion that any enforcement action authorised by the 2004 Act, such as an improvement notice, arising from an inspection that is not authorised by the 2004 Act is an unauthorised action and so invalid.

I think that red40's earlier post is probably a very real analysis of the situation:


There are set procedures councils have to abide by its written into the legislation and yes you are right, from my experience the vast majority of the councils issue invalid notices, be it Part 1 notices or any of the procedures for licensing.



I hope this helps.

[SAWNOAK]

Thanks to Red40, Jeffery & Johnny99, very useful information, I can now go in fighting!

[johnny99]

I think that the acting on my/your behalf is a total red herring.

They are not acting as the agents of the landlord, they are carrying out an inspection under the Housing Act 2004 and therefore, they have to act in accordance with the requirements of the legislation and the within the powers granted to them under the Act.

Have a look at the Residential Property Tribunal decisions which red40 refers to. They can be found on the RPT site (www.rpts.gov.uk) There has also been another decision in 2008 by the Vale of White Horse District Council CAM/38UH/HIN/2008/0009 which also gives a bit more explanation regarding the Tribunal's assessment of the powers of entry under the Act. (www.lacors.gov.uk/lacors/ContentDetails.aspx?id=19351) While it refers to an HHSRS inspection, the principles are valid across the whole of the Act.

Amongst other things, the Tribunal notes that:


an inspection is not an "inspection" under the 2004 Act unless the required notice is given or an exemption from notice applies. Therefore the Tribunal is of the opinion that any enforcement action authorised by the 2004 Act, such as an improvement notice, arising from an inspection that is not authorised by the 2004 Act is an unauthorised action and so invalid.

I think that red40's earlier post is probably a very real analysis of the situation:


There are set procedures councils have to abide by its written into the legislation and yes you are right, from my experience the vast majority of the councils issue invalid notices, be it Part 1 notices or any of the procedures for licensing.



I hope this helps.

Apologies, the third paragraph above should have read:


Have a look at the Residential Property Tribunal decisions which red40 refers to. They can be found on the RPT site (www.rpts.gov.uk) There has also been another decision in 2008 regarding enforcement action taken by the Vale of White Horse District Council CAM/38UH/HIN/2008/0009 which also gives a bit more explanation regarding the Tribunal's assessment of the powers of entry under the Act. (www.lacors.gov.uk/lacors/ContentDetails.aspx?id=19351) While it refers to an HHSRS inspection, the principles are valid across the whole of the Act.

I did try to edit the post, but my IT skills were not up to it.

I shall now return to pedants' corner.

[SAWNOAK]

I would have thought that the term “not acting within his legal entitlement” would come into play here, which to my mind means, if an HMO officer trespasses or for that matter harasses, then he has done this as an individual, and must face the same consequences as any one else.

In other words he is no longer authorised as soon as he breaks the law.


A Local Authority HMO officer has the right of entry to the property under section 239(1) of The 2004 Housing Act,. This section provides where the Local Housing Authority considers there is a need to enter the property to carry out its duties regarding licensing. Section 239 further provides that 24 hours notice must be given to both the landlord and occupiers of the House in Multiple Occupation.

It should be noted, that should the Housing Authority not have a need to enter as per Section 239 they would not have a right to enter and to do so would constitute a trespass.

[johnny99]

Okay, so now I'm going to prove that I'm a pedant!!

Consider Section 239(1)(a) of the Housing Act 2004


239 Powers of entry
(1) Subsection (3) applies where the local housing authority consider that a survey or examination of any premises is necessary and any of the following conditions is met —
(a) the authority consider that the survey or examination is necessary in order to carry out an inspection under section 4(1) or otherwise to determine whether any functions under any of Parts 1 to 4 or this Part should be exercised in relation to the premises

(Subsection (3) allows an authorised person to enter a premises.)

HOWEVER ....... S.239(1)(a) refers to carrying out an inspection under Section 4(1) (the HHSRS). It does not refer to carrying out an inspection under Part 2 of the Act (licensing). It only refers to determining whether any of the local authority's functions under Part 1 to 4 should be exercised. It does not say that they can enter the premises in order to exercise a Part 2 function. (See, I told you I was a pedant.)

I find this quite interesting and it gets more interesting (or confusing!!) There is clearly a power of inspection under Part 1 in S. 4(1). But, and it's a big but, there is no similar power of inspection anywhere within Part 2 of the Act. The only mention of any sort of inspection under Part 2 is in Section 55 and that refers only to inspecting to see if there are any Part 1 functions (HHSRS) that the local housing authority need to exercise. To me, the difference between what can be done under Part 1 and what can be done under Part 2 is quite striking.

My fiendish little brain looks at this and wonders whether there is any such thing as a licensing inspection at all, and have all inspections undertaken under the umbrella of 'licensing' been outside of the scope of the Act in any case?

If none of the above makes any sense, please sit down with a glass or two of red wine and have a look later. It certainly helps me!!

I'm not a lawyer and I don't know whether or not my analysis is correct, but I do find this interesting and would appreciate hearing some other views on this.

Regards all and goodnight

johnny99

[Farrar]

I thought that if you gave a tenant 24 hours notice, then you could lawfully enter his room.

[jeffrey]

Not unless:
a. T permits; or
b. it's an emergency; or
c. L is using s.11(6) of LTA 1985 if that applies to the case concerned.

[Pelican eats pigeon]

I thought that if you gave a tenant 24 hours notice, then you could lawfully enter his room.

Well, I'm happy you're not my landlord! :p

[Rodent1]

What a fascinating thread .....so what was the end result !???

The Rodent

[johnny99]

Sawnoak,

It appears that me and The Rodent are interested in how things are going, even if nobody else is. Any progress?

Johnny99

[DanceKing]

I recently have had a tenant/HMO inspection disaster.

I own a property that was due for an inspection and was asked by the HMO office to notify my tenants. I was able to contact and advise all but one of the ocupiers, and so left a note to advise him. The inspection was carried out on all but the accommodation rented by missing tenant. The HMO officer insisted that I open the door to this flat, and I agreed reluctantly after he said that I was obstructing him. To cut a long story short, the tenant was asleep inside and denied I had given him advance notice, The HMO officer did a quick disappearing act, now I’m apparently to be prosecuted by the Council’s tenancy relations office for trespass, and then, no doubt sued by the tenant.

My experience should be a lesson to all, Give the HMO people only the help required by the 2004 Housing Act, Give them the names of the tenants and let them do what they are paid to do, that is, make there own visiting arrangements with the occupiers themselves.

I would welcome any comments, and has any one else had problems with these HMO people who in the main seem to be a bunch of arrogant b******s.

I must say it is for that reason i always notify my tenants of every minute thing by email. I use google email that way you never have to delete any email and you will have proof that it was sent.

Always blind copy your tenants in. If you have a problem tenant mention in the email that you have text them put a letter through their door and now emailed them but had no reply. (make sure you do it all) That will just help prove your actions.

But for me email is the key.

[DanceKing]

I recently have had a tenant/HMO inspection disaster.

I own a property that was due for an inspection and was asked by the HMO office to notify my tenants. I was able to contact and advise all but one of the ocupiers, and so left a note to advise him. The inspection was carried out on all but the accommodation rented by missing tenant. The HMO officer insisted that I open the door to this flat, and I agreed reluctantly after he said that I was obstructing him. To cut a long story short, the tenant was asleep inside and denied I had given him advance notice, The HMO officer did a quick disappearing act, now I’m apparently to be prosecuted by the Council’s tenancy relations office for trespass, and then, no doubt sued by the tenant.

My experience should be a lesson to all, Give the HMO people only the help required by the 2004 Housing Act, Give them the names of the tenants and let them do what they are paid to do, that is, make there own visiting arrangements with the occupiers themselves.

I would welcome any comments, and has any one else had problems with these HMO people who in the main seem to be a bunch of arrogant b******s.

I would also enlist the help of your MP to fight your case.

[peterr]

Im with you sawnoak. There are to many rules and regulations in this country. Private enterprise has been stifled. No wonder this country is in such a mess!!

[havensRus]

Thanks to Red40, Jeffery & Johnny99, very useful information, I can now go in fighting!

Hi Sawnoak, can you tell us the outcome of this matter for our education please.