RESIDENTIAL PROPERTY TRIBUNAL SERVICE
LEASEHOLD VALUATION TRIBUNAL for the
LONDON RENT ASSESSMENT PANEL
HOUSING ACT 2004 section 64 and schedule 5
LON/00AE/HMV/2011/0002
Property:32 Chichele Road, LondonNW2 3DA
Appellants:Abbeylord Properties Ltd
Represented by:Mr I Miller (counsel)
Rochman Landau LLP
Respondents:The London Borough of Brent
Represented by:Mr Asghar (counsel)
Mr P Mitchell (Brent Private Housing Services)
Date of Hearing:15thSeptember 2011
Date of Decision:5th October 2011
TribunalSiobhan McGrath (Chairman)
Mr M Cairns MCIEH
Mrs L Watson MA (Hons)
32 Chichele Road, LondonNW2 3DA
Decision and Reasons
Decision
The decision of the London Borough of Brent to grant a licence to Abbeylord Properties Ltd under section 64 of the Housing Act 2004 for a period of one year from 10th November 2010 until 9th November 2011 is varied. The period applicable is to be for five years from 10th November 2010 until 9th November 2015.
Reasons
Introduction
1. This appeal is brought by Abbeylord Properties Ltd against a decision by the London Borough of Brent in respect of a licensable HMO situate at 32 Chichele Road, London NW2 3DA.
2. The appeal is expressed to be an appeal against a refusal to vary the terms of an HMO licence granted in October 2010. However, it was agreed by the parties at the hearing that the Tribunal ought instead to treat the appeal as being against the terms of the licence itself (rather than the decision on variation). The Tribunal considered that it had jurisdiction to accept this change. If there was any doubt about this the Tribunal’s power would derive from section 230 of the Housing Act 2004. Additionally, and with the consent of the parties the Tribunal accepted the appeal out of time under paragraph 33 of schedule 5 to the 2004 Act.
3. In July 2011, directions were given for the determination of the appeal and a hearing convened on 15th September 2011. At the hearing the appellant company was represented by Mr Miller of counsel, Mr Bentata his instructing solicitor and Mr Phillips its managing director. The respondents were represented by Mr Asghar who is in-house counsel for the London Borough of Brent and Mr P Mitchell who is an Environmental Health Officer with prime responsibility for the case and who works for Brent Private Housing Services.
Background
4. On the morning of the 15th September, the Tribunal inspected the property It is a three storey mid terrace property of traditional construction and probably built in the early 1900s. External walls are solid brick construction with a part rendered front elevation. There is a pitched and tiled roof over. Windows are (dated) sealed double glazed units. The house has been subdivided to provide 14 separate room lettings of varying size. There are communalkitchen, personal washing and toilet facilities. The Tribunal inspected several lettings (including smaller units) and the common parts and facilities. It was noted that the rooms and common parts were in good decorative order and that bath and shower rooms and kitchens were equipped and finished to a high standard. There was an automatic fire detection and alarm system, associated signage and emergency lighting. The Tribunal was advised by the parties that ratios of facilities, fire safety arrangements and property maintenance were not in issue
5. The property has been in multiple occupation for some time and in the ownership of the Abbeylord Properties Ltd for at least 15 years. Abbeylord Properties specialise in lettings to visitors from other countries. Originally their main clientele came from Australia and New Zealand but more recently tenants have been drawn from a number of other countries.
6. In 2001 the property was registered under a scheme administered by the London Borough of Brent under the Housing Act 1985. That registration expired in March 2006. In April 2006, the provisions of the Housing Act 2004 came into force and it is common ground that the property is a licensable and subject to mandatory licensing.
7. In June 2008 the respondents granted the appellant a HMO licence for a term of one year subject to certain licence conditions. In October 2010 a further one year licence was granted to the appellant to come into force on 10th November, 2010 until 9th November 2011. In January 2011, the appellant requested a variation of the term of the licence from a one-year to a five-year licence. In April 2011 that request was refused and in June 2011, this appeal was made.
8. Prior to the granting of the first licence under the Housing Act 2004 in June 2008, the property was inspected by Mansi Thakkar. She noted that there was sufficient provision for kitchen and bathroom facililities, that the common parts were well maintained and that “The condition of the property was very good and the tenants were provided with a complaints box”. She also commented that she had had access to all rooms and they were all “of a decent size with sufficient space”.
9. A number of conditions were attached to the original licence which reflected certain concerns of the authority. The second licence granted in October 2010 contained similar conditions and was granted again for a period of only one year. Mr Philips requested an explanation of why the licence was granted for one year rather than the maximum of five years. In an email dated 21st January 2011, Jamilah Owusu from Brent stated as follows:
“On page 6 of the conditions of the licence, guidance has been given in order foryou to be considered in the future for a full term (up to five year) HMO Licence being
1. You will need to respond positively and appropriately to all the conditions set out above;
2. You will need to join an acceptable Landlord Accreditation Scheme, such as the London Landlord Accreditation Scheme (LLAS)
3. You will need to address the issues of concern regarding the exisiting written details of terms – especially see item 6.5.
4. You will need to provide all new Tenants with a written inventory relating to their accommodation.
5. As necessary, you will need to operate an acceptable Tenancy Deposit Scheme…
6. You will need to respond positively and in a timely fashion to any mandatory housing related enforcement notices, issued by the Council…”
I note that this was a renewal Licence and that the previous year on the 37th June 2008 you were also issued with a one year HMO Licence. I would like to bring to your attention that the same guidance was given on this Licence for you to consider in order to be considered for a full term of up to five years however it does not appear that any of the points raised were addressed”
10. On 27th January , Abbeylord’s solicitors, Rochman Landau LLP wrote taking issue with the matters raised by the council but it was not until April 2011 that a response was given by Mr Mitchell to the effect that he had taken advice from the council’s in-house solicitor who endorsed the concerns about the terms of the tenancy agreements used at the property.
11. During April and May there was further correspondence between the parties in respect of the terms of the tenancies and on 31stMay, 2011 Mr Mitchell suggested to Rochman Landau that they may wish to appeal to the Residential Property Tribunal.
12. This appeal was lodged and directions given for the exchange of statements and documents. In the statement of reasons for opposing the appeal, the council identified three main reasons for giving a one year licence:
a. The terms of the tenancy agreement are unfair;
b. The appellant is not a member of an acceptable Accreditation Scheme;
c. The property is not suitable in respect of the smaller bedsit rooms given the absence of readily available communal area/circulation space.
The Law
13. Section 67 of the Housing Act 2004 sets out the parameters for the imposition of conditions in HMO licences. It provides:
“67(1) A licence may include such conditions as the local housing authority consider appropriate for regulating all or any of the following-
(a) the management, use and occupation of the house concerned, and
(b) its condition and contents”
14. Subsection (2) then set out the matters which conditions may address, subsection (3) refers to Schedule 4 to the Act for conditions that must be imposed, subsection (4) deals with the relationship between the authority’s power to impose conditions and Part I of the Act and subsection (5) restricts the imposition of conditions on any person other than the licence holder. Subsection (6) provides:
“(6) A licence may not include conditions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house”
15. Section 68 of the 2004 deals with general requirements and the duration of a licence which must not be for a period longer than five years.
The issues
16. At the outset of the hearing Mr Asghar made two helpful concessions on behalf of the council. First, he accepted that Mr Phillips, on behalf of the appellant, had attended training as a landlord and is now a member of an acceptable Landlord Accreditation Scheme. Secondly, he conceded that the restriction in section 67(6) meant that the council could not rely on issues relating to the tenancy agreement as a foundation for conditions that might affect the duration of the licence.
17. This meant that the only issue for the Tribunal was the lack of readily available communal area/circulation space. Mr Mitchell told the Tribunal that, had this been the only issue at the time the licence had been granted, then a two year discount from the full five year term would have been applied and Abbeylord would have been offered a three year licence. It was submitted that the Tribunal ought to vary the licence to a three year term. Mr Mitchell however accepted that all lettings in the property exceeded Brent’s minimum size for space standards.
18. On behalf of Abbeylord it was submitted that a full five year term should be given. Mr Miller made the following points:
(a) The condition in both the 2008 and 2010 licence was not “to provide” communal area/circulation space. Rather, paragraph 1.4 of the conditions reads:
“1.4 Some form of readily available communal area/circulation space should be considered for all smaller bed-sit rooms”
He pointed out that breach of a condition in a licence is a criminal offence and that the condition would need to be clear before it could be enforceable.
(b) The licence conditions do not suggest that the property or the smaller rooms at the property are unsuitable and that since the met the space standard provided for by Brent, it could not do so;
(c) Reliance on the alleged non-compliance with this condition in the licence was not raised until after the appeal had been launched and could be taken to be a minor objection when compared with the matters that had now been dealt with or conceded.
(d) The need to re-apply was costly and time consuming and Brent had not raised any other points about the standards and conditions at the property.
19. Mr Mitchell agreed that the framing of the condition did not seek to impose a requirement for a communal area or circulation space. He said that this was deliberate. He considered that it was be wrong to seek to interfere with the commercial decisions of a landlord and furthermore that to impose an immediate condition may result in the eviction of tenants.
20. Mr Phillips told the Tribunal that some time ago, one of the larger rooms was used as a communal living room, however this had encouraged parties and loud music and for that reason it was preferable for the type of tenants he catered for, to have peace to work and study. He emphasised the fact that all of his tenants were here from abroad for a particular purpose and were not seeking accommodation for a lengthy period.
The Tribunal’s Decision and Reasons
21. The Tribunal determines that the term of the licence granted by the London Borough of Brent should be varied from a period of one year to a period of five years.
22. The Tribunal was concerned only with the issue of communal area/circulation space. It was satisfied that this was not an issue of suitability, rather it was a condition that required Abbeyfield to consider the welfare of its tenants in the smaller bedsit rooms. Whilst Brent are to be commended for attempting to encourage better provision in the HMO stock it was the Tribunal’s view that in this particular building and with these particular tenants, the appellant had given due consideration as required. The Tribunal did not decide that the condition should be removed because as a matter of good management, it was an issue that Abbeylord could revisit from time to time. However, the Tribunal were not satisfied that the lack of circulation space or a communal area in this case should have prevented the council from granting Abbeylord a licence for five years.
ChairmanSiobhan McGrath
Date5th October 2011