Property guardian companies. Just when you think that most of the firms involved have managed some form of legality around their possession and eviction practices, they go and disappoint you.
Way back in 2012, we noted the widespread failure of property guardian firms to adhere to the requirements of the Protection from Eviction Act 1977 – which they didn’t seem to have realised extended to residential licencees. Indeed, I took a (successfully settled) unlawful eviction claim against one of the larger companies, after which they amended their notice to quit requirements. The speed of response to publication of the issue varied, and Camelot – to whom we will return in a moment – took a couple of years to actually amend their licence notice periods from two weeks to four weeks. I had pointed this out to them, regularly, and was on the brink of creating a weekly automatic tweet when they changed.
But of course, 28 day notice is not the only requirement of the PEA, a fact that still appears to have escaped Camelot. Here is Section 3
(1)Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and—
(a)the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b)the occupier continues to reside in the premises or part of them,it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.
(2)In this section “the occupier”, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.
(As we have previously established, a ‘tenancy’ includes a residential licence – section 3 (2B) PEA).
So what to make of this (pictured) ‘notice’, served on Camelot guardians at the end of a 28 day notice to quit period? A notice full of what we can only call pseudo-legal and semi-literate gibberish.
“Self help action”?
“Lawful rights to take possession (…) INCLUDING THE COMMON LAW RIGHT TO PHYSICALLY REMOVE YOU, YOUR POSSESSIONS FROM THE Property”
“The police are aware of your trespass on this land”
And, my favourite bits:
“We would bring to your attention the case of Street v Mountford. Whilst it is arguable that exclusive possession could be found, if in the absence of a fixed term of the agreement would fail to satisfy the ‘tenancy test’. Alternatively please see in Gray v Taylor [1998] 1 WLR 1093.
(…) This right under Common Law is set out in Halsbury’s Laws of England (Volume 97 (2010) 5th Edition)”.
All ‘signed’ “Enforcement Officers On behalf of Camelot Properties”.
If anyone knows this whether farrago of nonsense, complete with CAPITAL LETTERS, underlining and red ink, was drafted by private bailiffs or by Camelot, please do let us know. If it was private bailiffs, do name and shame the firm.
So, it appears that Camelot are serving (or causing to be served) these notices, presumably with the intention of scaring people out of the properties without having to have recourse to possession proceedings.
It should go without saying that if Camelot (or their ‘Enforcement Officers’) did try to exercise ‘self help’ or their ‘common law right to physically remove’ the former licencee (always assuming it is a licence, not a tenancy – Street v Mountford), then this would be an unlawful eviction and an offence under section 1 Protection from Eviction Act.
But what of the act of simply threatening such steps, in order to make people leave?
Well, that would look a bit like a breach of sections 1(3) and 1(3A) of the PEA.
(3)If any person with intent to cause the residential occupier of any premises—
(a)to give up the occupation of the premises or any part thereof; or
(b)to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;
does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence.
(3A)Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if—
(a)he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b)he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.
I think the threat of ‘Enforcement Officers’ and police ‘physically removing’ them from the property without further notice might indeed count as likely to interfere with the peace or comfort of the residential occupier. And a breach of s.1(3) or (3A) is a criminal offence.
Oh dear, Camelot. This is behaviour we expect from rogue landlords, not responsible businesses. Do please provide an explanation, if you have one.
(Update 28 September 2016. Camelot actually did send in private bailiffs without a court order to carry out an eviction. Incredibly. The occupier now has a solicitor. More as and when we can pass it on.)
Do you know if a licencee/tenant acting as a property guardian is subject to the Right to Rent checks? If yes, who is responsible for conducting the checks?
Yes they are, and the guardian agency.
Helpful as always
Forgive me for asking, but am I correct in assuming this extends to persons who continue to reside in their own property but who take a ‘lodger’? They have been granted a license but my presumption was that ‘reasonable notice’ was the requirement, which is of course subjective?
S.3A Protection From Eviction Act 1977 makes it clear that an occupier is excluded from s.3 protection if the landlord occupiers the property as their only or principle home at the start and end of the tenancy, and shares accommodation with the tenant/licensee beyond access or storage space.
Is not Section 40 of the Administration of Justice Act 1970 possibly relevant in this context?
(Unlawful harassment of debtors being a criminal offence)
No, not debt based. And even if arrears were an issue, only debt based if termination of licence was combined with a demand.
The contracts I get shown just have a generic address, such as 240 High Rd and dont identify a dwelling within the building as a whole, the old AG Securities v. Vaughan ploy, whereby if you cant identify what a person has a lease of there can be no lease. My argument always being well they are at least contractual licensees and therefore not excluded by section 3A PFEA
Yes, even if they are residential licences rather than tenancies, they are still subject to PFEA. This is something that appears to have escaped Camelot.
And its a scam being picked up by rogue landlords too. As a now freelance TRO I am, more and more being presented with ‘Lodger agreements’ (easy to defeat with a bit of factual investigation) and ‘Licence agreements’ which are silent on the room the individual is renting or no agreements at all. One cheeky bugger even quoted AG Securities back at me to abrogate themselves from the responsibility for protecting the deposit on the basis that an unidentified room cant be an AST.
The lion’s share of these are in one particular borough who I wont name. You have to wonder if there isnt some sort of rogue landlord “Bullingdon club” where they all swap successful scams.
Occasionally I present at landlord’s fora and there hasnt been a single time when I dont stand down from the lectern and get at least 2 landlords say to me “This deposit protection Malarkey? Is there anyway around it”……..DOH!
Can be tricky in a shared house. But if all granted at the same time, then joint tenancy of the whole property… And if ‘tenant’ has a room that they can secure (and without right for access or inspection at any time/reserved right by LL to put other people into space/etc) good argument on tenancy.
Mind you, I saw one guardian setup merrily granting ‘licences’ of specific rooms in a building. They were surprised where the LA TRO said they were tenancies…
Trouble is that at the desperate end of the market, where I unfortunately find myself working, an absence of a tenancy agreement or a spurious and non-room specific licence agreement is standard.
The occupants rarely move in together at the same time and although I always argue they have exclusive possession of their room and are therefore under Street v. Mountford exclusive occupation and as a consequence an AST by default it isnt always clear, leaving me in limbo when advising on deposit protection, having to float the notion of two possibilities past them, AST or residential licence.
The protagonists in Mountford and Antoniades v Villiers looking as innocent as Midsommer Murders by comparison to the current crop of pretences and shams.
A course delegate from a recent Shelter course showed me their notes advising that guardians not stipulating a room means there can be no tenancy, which chimes with what Lord Templeman said of AG Securities with the concomitant knock on effect of rogue landlords using the lodger/non specific licence agreement trick currently doing the rounds in certain parts of London.
If anyone has a crystal
clear answer on this one I have ears the size of Dopey.
I have been helping guardians with legal challenges from guardians agencies for a while now, as well as fighting my own of course and I nearly always get a satisfactory result. Camelot is the company I lock horns with the most, and in 2013 they actually rewrote their licence agreements to prevent the kind of legal action I was threatening to take against them at the time.
I noticed that in the last couple of years agencies changed their agreements so that you are no longer assigned a room number as you used to be and I assumed that was to get around some law which made us tenants or lent weight to that idea.
I have seen a lot of guardian contracts from different companies over the years and they constantly change, wriggling like a snake to avoid problems as they come up.
With Camelot I informed them, ghost writing for a guardian, that their licence termination notice was not legal and should be represented correctly. They ignored me and tried again. I advised the guardian to file a police report and send the number to them warning them that they should attempt an unlawful eviction and removal of his stuff so they sent another notice, also not valid. Two months went by and I had arranged for a journalist and a film crew to be there waiting to record the encounter, but at the last minute a law firm agreed to help the guardian and sent a letter on his behalf saying their notice was not legal, which is just what I had been saying, and they issued a notice the kind of which I’ve never seen before. As their previous notices did not look like this I imagine vitually none of them had been valid up to that point.
I also defeated other legal challenges Camelot made to guardians, who are usually scared when they read stuff about police kicking them out. The intimidation tactics do not work at all on me, but most are scared and comply. I don’t think these bullying tactics should be permitted. I have written a 24 page report on guardianship, which includes a lot of my own personal experiences of 7 full years in the scheme, going into my 8th this week, and will be sending it to Lord Beecham who spoke earlier in the year on behalf of guardians to help give evidence that refutes Baroness Evans claim that the industry is not a growing one (it most certainly is!) and that there has been a lack of protest from guardians (not entirely true, but agencies are very good at silencing people either with threats or negotiating deals and settlements, plus many agencies have media gagging clauses, but the Camesquat occupation this week at least shows some signs of protest whih the Baroness cannot ignore).
I am also sending it to Sadiq Khan, and a few other politicians and journalists to try and get some attention drawn on the specific and complex issues surrounding operation of the scheme from a legal standpoint and also for rights of guardians themselves. If anyone here is interested in reading or sharing my work I’d be happy to email you a copy. =)
Hi Rex. Do email a copy – nearlylegal.uk@gmail.com
I can pass it on to the others.
By the way, proceedings underway against a certain very large Guardian company… I cannot yet comment on the legality of any notices involved, but there was an eviction without court proceedings.
And yes, giving a room number on the agreement would be pretty much fatal in a Street v Mountford argument.
I’d be grateful to receive a copy of you report Rex. This thread has been really useful to read.
Hi Rachel, sorry I’ve only just seen your comment. I have made a copy of my Charter for recommended regulation of the industry available on my Facebook Group page, Property Guardians UK. It is a downloadable PDF. I am working on an update to the document now, due for release on May 24th 2017.
Rex I’m also happy to have a report if Giles is happy sending you my email address, also have contacts in TV that I’ve spoken to about this
Hi Ben, sorry I’ve only just seen your comment. I have made a copy of my Charter for recommended regulation of the industry available on my Facebook Group page, Property Guardians UK. It is a downloadable PDF. I am working on an update to the document now, due for release on May 24th 2017 to coincide with my appearance at the Empty Homes Network conference in Birmingham. I am involved currently with a number of initiatives to improve the situation for guardians and the industry has used my recommendations at a recent meeting discussing the formation of a trade association. If you have any TV contacts who might be interested in covering the story I would be happy to chat with them. My email is rexduis@gmail.com.
I’ve not had any run ins with property guardian companies although I certainly recognise this kind of rubbish from some of the rogue landlords I’ve dealt with. Did you have any luck identifying whether this was from Camelot themselves or from the enforcement officers?
Camelot is one of the property guardianship providers that includes gagging clauses. At the time of moving into a former residential care home, the guardians were unsure of who the owner was at the time as a rumour had circulated that a third party had purchased the building. Be as it may, it was later evident that the Surrey County Council was the owner of the property.
Clause 16 within the rules and regulations provided by Camelot states:
16. Restrictions on Guardian contacting Owner
The Guardian shall not at any time attempt to contact the Owner
Failure to observe this limitation is deemed as gross misconduct
1.43 8.9 If Camelot believes that there has been Gross Misconduct, then this agreement may be terminated immediately at any time by Camelot giving the Guardian written notice stating that this agreement is terminated immediately.
Such gagging clause would, in effect, prohibit the property guardian from being able to contact a local council body – in this case, the Surrey County Council. At the face of it, such action by Camelot would be considered to be beyond ludicrous, considering that the European Convention binds the United Kingdom, such articles being encapsulated within the Human Rights Act 1998. This fact, however, does not seem to have discouraged Camelot as a report contained within the Bristolian online publication provides the reader with a revealing snippet published at https://thebristolian.net/2017/01/25/ye-damned-chronicles-of-scamalot-8/ whereby guardians were informed that they were not allowed to be on the electoral roll.
According to my understanding of the Occupiers’ Liability Acts 1957 and 1984, both Camelot and the Surrey County Council have a legal duty to take reasonable care to ensure that guardians and their visitors are reasonably safe. Considering that Camelot is notorious for ignoring the concerns of guardians, such gagging order would, in turn, create a situation whereby the council breaks the law due to non-performance.
According to https://www.landlordlawblog.co.uk/2019/02/05/property-guardians-revisited/ should the owner be a council, it is unable to serve notices on itself which further is an example of the mess the current property guardianship concept creates.
Surely from a contractual angle, clauses that undermine Convention Rights in a contract between a property guardian provider and a property guardian should be considered to either be null and void or at best voidable?
A gagging clause is distinct from Occupiers Liability Act 1957 liability (or 1984). It is also not at all clear whether the Guardian Company would be an ‘occupier’ for the purposes of the Act, which would leave the duty on the property owner.
Housing Act 2004 enforcement is difficult where the council are the owner, where on HMO licensing or on HHSRS standards.
Convention rights do not apply to relations between private parties, so have no impact on the contractual clauses. Unfair terms in consumer contracts regulations, on the other hand, may do.