What happens if a landlord fails to comply with an improvement notice?

What is an improvement notice?

An improvement notice under the Housing Act 2004 is a formal instruction by a local authority requiring the person served with the notice to carry out works specified in the notice. A typical improvement notice might require a landlord to install a smoke alarm system in a house in multiple occupation (HMO) or treat mould which is growing in a damp bathroom.

Who can be served with an improvement notice?

There is no reason why a local authority could not serve an improvement notice on a homeowner. However, this is extremely rare.

Most improvement notices are served on private sector landlords, and local authorities have been criticised for not using their powers under Part 1 of the Housing Act to force social landlords to carry out repairs.

What happens if a landlord fails to comply with an improvement notice?

The improvement notice is a formal document with legal force. If the person served with the notice fails to comply they commit a criminal offence.

The improvement notice will specify:

• What work needs to be done
• When the work should start
• When it should be completed

Local authorities may impose a charge for their costs of serving the notice.

If a landlord disagrees with the requirements of the notice, they can appeal to the First-tier Tribunal. It’s also possible to ask a local authority to vary or revoke an improvement notice, and then appeal to the tribunal against any refusal to vary or revoke the notice.

What are the Council’s options for dealing with a non-compliant landlord?

Failing to comply with an improvement notice is a criminal offence, and landlords can be prosecuted in the magistrate’s court.

In a recent case, the London Borough of Newham successfully prosecuted Chaplair Ltd for breach of an improvement notice which required the building owner to deal with flammable ACM cladding. The court rejected the landlord’s defence of ‘reasonable excuse’, finding that claimed difficulties in arranging contractors and funding for the work did not amount to a good enough justification for failing to comply with the council’s timescales.

Councils have other options to punish landlords who do not comply:

1. Councils can impose financial penalties of up to £30,000.
2. Where the recipient of an improvement notice is a company, directors can be personally prosecuted or fined.
3. If the council is trying to ensure that improvement works actually get done to a property, the Housing Act 2004 gives them the power under schedule 3 to take action and do the works themselves.

Another approach taken by the London Borough of Barking and Dagenham recently was to apply to the High Court for an injunction ordering the recipient of the notice to comply. This struck some observers as a rather odd case – if the landlord will not comply with the improvement notice, will they pay any attention to an injunction? And why did the council not just use its Housing Act 2004 powers? There may be good answers to these questions, but they are not apparent in the High Court judgment.

What are the tenant’s options with a non-compliant landlord?

If the council have served an improvement notice, it’s possible – and perhaps probable – that there is something seriously wrong with the property. Sometimes this will be something which affects the occupier’s day-to-day life, for instance, a broken heater. Other times it will be something which exposes the tenant to a risk of serious harm, even if day to day it is not causing any obvious problem (e.g. flammable cladding).

A tenant might have a claim against their landlord in disrepair or unfitness for human habitation if an improvement notice has been served.

Where a landlord has committed the criminal offence of not complying with an improvement notice (even if there has been no fine or prosecution) the tenant can apply for a rent repayment order against the landlord.

An improvement notice can also invalidate a section 21 notice served before or after the improvement notice under ‘retaliatory eviction’ rules.

What do landlords need to know about improvement notices?

Ignoring an improvement notice is inviting trouble. If the timescales in a notice are unrealistic, the landlord should appeal (after trying to negotiate with the council’s officers). If the works requested appear to be excessive to the landlord they can just do them anyway, or appeal. Much of the time an appeal will be pointless because the cost of appeal will be greater than the cost of doing the work.

Where works are taking longer than expected, it’s important to keep the council updated. Requesting a variation of the notice is better than just failing to comply.

Landlords should make every effort to comply because even if council officers decide that the landlord is making just enough progress that a prosecution is not necessary, that would not prevent the tenants from trying to get a rent repayment order.

Often there is scope for negotiation. There might be a good reason why the works proposed by the council are not the most sensible approach.

Where the landlord is struggling to get access to a property in order to comply, councils often are willing to suspend the effect of the notice. This is where the involvement of lawyers, and sometimes mediators, can be helpful – as they might spot a possible compromise which will work for both parties.

At Anthony Gold Solicitors we have experience advising both landlords and tenants on disputes relating to repairs, and we can advise landlords after an improvement notice has been served. Contact us today by calling 020 7940 4060 or emailing your query at mail@anthonygold.co.uk.