Grim Reaper and Service of Notices

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Comments

Andrew,

Thank you for your post, it was very timely considering a case I am currently dealing with.

I have been dealing with a property which was severely hoarded but making little progress with the owner occupier. Unfortunately he passed away a couple of months ago leaving the property now empty but still severely hoarded and potentially with a number of Housing Act hazards. I am intending to follow the guidance you have posted regarding service of notices but would just like to clarify the issue of access to carry out the initial inspection. Normally with an unresponsive/unhelpful or absentee owner I would seek to arrange a warrant to gain access under s240 of the Housing Act 2004. Given the situation, would this be the correct process to follow?

The owner died intestate and although we have located 2 very distant relatives, they have both stated that they do not want to be involved and have no interest in the property.

Some clarification would be appreciated

Thanks

Adrian

Adrian

You should  follow the usual approach to secure access, even if the owner is deceased

Your powers of entry under Section 239 (1)(a) Housing Act 2004 are for the purpose of

(a)the authority consider that the survey or examination is necessary in order to carry out an inspection under section 4(1) or otherwise to determine whether any functions under any of Parts 1 to 4 or this Part should be exercised in relation to the premises;

So you do not necessarily need to have hazards present, but the purpose of the inspection is to determine whether the LHA needs to exercise Part 1 (HHSRS) to Part 4.

If the property is actually secure, then to my mind you need to serve the power of entry notices and then secure a warrant under Section 240.

You can probably get away without copying the power of entry notices to the Public Trustee on the basis that the notice does not affect land - as you are only inspecting and surveying the land / property.

The Magistrates should be fairly reasonable and accept a warrant is needed. You still need to comply with the legislative requirements i.e. 24 hours notice, authorised officer, proof of service and take a copy of the act with you to Court.

You can then undertake an inspection of the property and take a view on what approach is the most appropriate. It is also beneficial to have a thorough look around as you may find some items which may be helpful in tracing family members i.e diaries with family phone numbers, bank statements, Christmas Cards with family addresses etc.

The hoarding issue is an interesting one - many LAs do use the HA 2004 - Domestic Hygiene, Pests and Refuse hazard as a way to deal with the usual hoarding materials.

However, the Landlords / owners responsibility stems from section 11 Landlord and Tenant Act 1985 - page 37 Section 9 Guidance. Generally, they are only responsible for the structure and installations.

If you use the "British Insurance test", if you turn the house upside down and give it a shake, anything that remains attached is the owner/landlords repsonsibility and anything that falls is not.

So it could be argued that the using this hazard to deal with hoarding is not appropriate, but there are LAs that take an alternative view

It could be argued that to do any works in default, it is necessary to clear the hoarding material to ensure safe working practice for the contractor (duty of care) etc.

There is also the practical view that if no probate has been granted, then there is no one with the requisite interest to challenge any subsequent notice served by the LHA.

If you intend to proceed with an enforced sales as a result of creating a statutory debt then a cleared property tends to attract a better price than a horaded property

Once the notice has been served assuming that there are no material defects in the notice and it has been served correctly, then the notice is final and conclusive as to matter that could have been raised on appeal. 

You also have the ability to use Section 35 Public Health Act 1961, filthy and verminous on the basis that you are satisfied that any premises—

(a) are in such a filthy or unwholesome condition as to be prejudicial to health, or

(b) are verminous,

If you have tried your best and cannot find any living relatives, then you could refer the estate to Bona Vacantia (died intestate) or use a tracing agent.

The safest option is to refer to Bona Vacantia, so the estate is offered to a range of parties not just an individual heir hunter company.

If I have not answered your question, please let me know

If anyone else has any alternative views, then please post them - always good to have a range of views on the topic.

Regards

Andrew Lavender

Housing Training & Consultancy