Comment

Can Selective Licence conditions require a landlord to attend a training course?

Wednesday, August 12, 2020 - By Robin Stewart, Solicitor, Anthony Gold Solicitors

In March this year the Upper Tribunal considered an appeal brought by a landlord who objected to a condition in a selective licence. The landlord, Mr Berg, argued that Burnley Borough Council had no power to impose a requirement for him to attend training courses under the conditions of a selective licence.

The condition in question required the following:

The Licence Holder and/or their agent where an agent has been appointed to manage the property) must attend one Landlord Development Day covering how to manage tenancies whilst the licence is in force and must undertake any additional Property Management training courses that the Authority from time to time requires to be undertaken. Alternatively demonstrate to the Local Authority that similar, relevant training has been undertaken within the preceding 12 months.

Mr Berg appealed to the First-tier Tribunal, which varied some of the conditions in his licence, and then Mr Berg appealed again to the Upper Tribunal specifically objecting to being required to undertake training.

The Upper Tribunal decided in Berg v Burnley Borough Council [2020] UKUT 91 (LC) that the local authority had the power to impose this condition, and that it was proportionate to do so. The tribunal noted that the local authority’s powers to impose licence conditions in the case of HMO and selective licences differed slightly and that this meant that some types of condition would be acceptable in an HMO licence but not in a selective licence condition (following the Court of Appeal’s decision in Brown v Hyndburn Borough Council [2018] EWCA Civ 242). Further, the tribunal noted that, at section 67(2)(f), the Housing Act 2004 specifically allows HMO licence conditions to include a requirement to attend training courses but the section dealing with selective licence conditions, section 90, omits this reference.

However, this did not persuade the Upper Tribunal that Burnley Borough Council could not require the landlord to attend a course – as long as the course related to the management, use or occupation of the house concerned, this fell within the scope of section 90 and was a legitimate condition for a selective licence.

The landlord’s second line of attack was to criticise the requirement to attend a course as being disproportionate. The tribunal was not persuaded by this, noting the Council had provided evidence  that many landlords in its area were not aware of their legal responsibilities, and strikingly, that “in the Danesborough area of the borough it recently found that 78% of properties did not have a valid gas safety certificate”.

The landlord had argued that training courses were disproportionate because “a selective licensing scheme <…> tends to encompass landlords of smaller properties, who do not need the same level of management skills, and who moreover are not making a great deal of profit.” The Upper Tribunal’s rejection of this point is another example of the ways in which the entire private rented sector is gradually moving to become more professionalised and regulated – increasingly there is no room for even small landlords with one or two properties to take an ‘amateurish’ approach, and there is no sign of this cultural and regulatory shift reversing. For example, the Government has committed to introducing mandatory redress scheme membership for landlords.

It is crucial for landlords to understand that failing to comply with a licence condition is a criminal offence, and that if they do object to a licence condition it must be challenged by making representations to the local authority and then appealing, rather than simply disobeying the condition.

The author of this blog, Robin Stewart, is a Solicitor in the Housing team at Anthony Gold Solicitors. His email is ros@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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