Landlord Alert: licensing risks of double jeopardy and entrapment

A legal services provider is claiming that landlords risk criminal prosecution for breaches of licensing rules that are often “unreasonable and beyond their control.”

Des Taylor, a director of Landlord Licensing & Defence, says: "Despite the Renters Reform Bill introducing a landlord portal and the suggestion that there would no longer be a need for selective licensing, this appears to be ignored by Parliament and by the tenant lobbying organisations along with the environmental health officers who carry out housing enforcement under the Housing Act 2004.

"It looks like licensing is here to stay and more and more licensing is coming about with new selective licensing schemes coming into city areas outside London, including the recently and most publicised Birmingham City Council and Nottingham City Council schemes."

He claims licensing conditions often carry the risk of double jeopardy enforcement and of possible entrapment because it is beyond the power of the landlord to control some activities such as a tenant’s anti-social behaviour outside premises.

"There are cases currently being defended where tenants have confessed to damaging the property and not permitting access, yet the landlord and agent are being enforced against under licence conditions. Many landlords and agents do not realise how important it is to comply with them."

He advised landlords applying for licences for the first time, or who already have licences, to check them and read the conditions to ensure they are compliant.

And he adds: "That Notice of Intent to Grant a Licence is one of the most important documents a landlord will ever receive in the process yet is often taken as a fait accompli. You legally have the opportunity to make representations in a minimum of 14 days and it is vital if you disagree with any of the conditions that you must make representations.

"Licence conditions are one of those things that many people think they have to accept as presented and not realising that once you have accepted all the conditions on that licence, that not complying with them is a criminal offence. If you have a managing agent and they do not comply you are both culpable, because you agreed to them, by not contesting them through representation. The local housing authority can now enforce against you as a criminal offence."

Taylor says his service is seeing considerably more enforcements against licensing conditions as landlords have unwittingly broken the rules without knowing of them, because of a failure to check.

He concludes: "There is no evidence that a licensing scheme ever achieves the outcomes promised at the time of the proposal and furthermore it is not understood why the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, continues to support those schemes where the local housing authority wishes to apply the selective licensing scheme in more than 20 per cent of its geographical area.

"There does not appear to be any justification most of the time and some are abandoned, some are renewed yet little, or nothing is achieved by the schemes. Most of the time it is more revenue for the council in licensing fees and the ability to enforce under a breach of licence conditions."

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