Empty Property Definition

I would be very grateful if anyone could try and provide some definitive advice about the long-standing question of what constitutes an ‘Empty Property'. Any comments are gratefully received   

We have recently been subject to an Ombudsman investigation following a neighbour complaint about a property which is claimed to be empty. The owner claimed that they were in occupation. I was of the opinion that on balance, this particular property was not lived in all the time but thought the owner may use it as a ‘second home’.

The Ombudsman found that we were at fault and we have therefore been asked to complete a review of our existing empty homes approach to see if we can “encompass a better definition of what is an empty home and how the Council will decide this”. The case crossed multiple departments including, Housing Enforcement, Building Control, Environmental Services, Conservation Team, Planning Enforcement, Council Tax and the Empty Property Service.

We have explained that there is no legal definition of an empty home. Our policy has cited Government advice from 2003 contained in guidance “Empty Property – unlocking the potential” which defined an empty property as one which is:

• unoccupied for six months or more;

• occupied but where the space is capable of better use;

• which has no ‘reasonable prospect’ of being brought back into use by the

owner working alone.

 

The 2003 guidance also says, “a property does not need to be used all of the time to

be ‘occupied’. Properties that are used infrequently, such as a second home or a

holiday home are not covered in this guidance”.

Not surprisingly the Ombudsman also looked at the Council Tax definitions via the Local Government Finance Act. This imposes two tests. First a property must be ‘unoccupied’. Second, a property must also be “substantially unfurnished”. Their guidance says if a property is substantially unfurnished then it is “unlikely to be occupied or capable of occupation”.

The Ombudsman has stated that he does not consider the Council could properly treat as an ‘empty home’ one that is unoccupied but capable of occupation; i.e. substantially furnished with all the essentials of living or in a state fit for habitation. For example, one where the owner chooses to spend most time elsewhere and so treats the property as a second home. He also states that he finds the judgment on whether the property is empty, rests more on if it is capable of occupation than whether it is lived in.

 

NB. I am unable to provide a copy of the full decision due to specific instructions from Ombudsman regarding confidentiality.

Forums: 
miscellaneous issues

Interesting post. Not an easy answer, unfortunately.

In Cornwall (as in most other areas, I expect) our focus is on proactive and reactive work dealing with Council Tax classified 'Long-Term Empty' (LTE) properties as per New Homes Bonus definition (i.e. empty for 6 months or more).

But we get many complaints about other vacant properties which on checking are apparently 2nd Homes, Single Person Discount, or subject to an Exemption.

Ascertaining the true position, and deciding whether to challenge/tackle, is difficult. 2nd Homes are a particular problem, and if properties are evidently furnished albeit rarely used there is little we can do. But if we can evidence that they're uninhabitable we'll liaise with Council Tax colleagues about possible account amendment and consider challenging (they won't change without evidence). That's easier said than done, but if owners don't communicate/engage with us we gradually step up through our investigation procedure, particularly if problems to neighbours/community, and will seek entry (ultimately by Magistrates' Warrant if necessary) in some cases where appropriate. Probably that brings with it a risk of Ombudsman complaint about us being 'heavy-handed', but we aim to ensure that we have a robust foundation and neighbour/community support for such action.

A letter was circulated by DCLG on 23/09/2014, which is of some use (I haven't seen anything since, but would be interested to know if updated):

COUNCIL TAX INFORMATION LETTER: COUNCIL TAX – DEFINITIONS OF EMPTY HOMES AND SECOND HOMES

Since April 2013, local authorities have had the discretion to charge between 50% and 100% council tax on properties which are unoccupied and substantially unfurnished, and are able to charge a premium of up to 50% on properties which have been unoccupied and substantially unfurnished for two years or more.

There has been a suggestion that taxpayers are avoiding paying the premium by installing furniture. This is notionally because property which is unoccupied but which is not ‘substantially unfurnished’, is a second home rather than an empty home, and the premium does not apply. However, DCLG has no evidence that billing authorities have difficulty applying the legislation, nor that that they are experiencing difficulties with avoidance.

Notwithstanding, to assist local authorities and enhance the broader public scrutiny of this issue, this Information Letter outlines the current situation and the Department’s informal view on these matters.

• The premium may be applied to properties which have been 'unoccupied' and 'substantially unfurnished' for two years or more. Periods of six weeks or less when the property is occupied/furnished are disregarded for the purposes of calculating the two-year period for the empty homes premium.
• The council tax system provides specific statutory exemptions for properties left empty for a specific purpose, for example when a person goes into care. Council tax is not levied on such properties.
• Under the Council Tax (Prescribed Classes of Dwellings) (England) Regulations 2003, the Government has prescribed two classes of dwellings which are exempt from the premium. These are: (a) a dwelling which would otherwise be the sole or main residence of a member of the armed services, who is absent from the property as a result of such service and (b) a dwelling, which forms part of a single property that is being treated by a resident of that property as part of the main dwelling (i.e. annexes).
• DCLG has also published guidance on empty properties which are for properties for sale and letting.
• There is a misconception that the premium is easy to avoid by simply placing some furniture into a property. We do not have evidence that this is the case. 'Substantially unfurnished' is not defined in council tax legislation, but is used for the purposes of the empty homes discount regime and the empty homes premium (Section 11A & 11B of the Local Government Finance Act 1992).
• Local authorities will have formed their own views on the definitions for the purposes of administering both the discounts and the premium. A property which is substantially unfurnished is unlikely to be occupied or be capable of occupation. A property which is capable of occupation can reasonably be expected to contain some, if not all, items from both of the following categories: furniture such as bed, chairs, table, wardrobe or sofa, and white goods such as fridge, freezer or cooker.
• Where a property is said to be occupied it will be reasonable for the local authority to cross-check with the electoral roll , or ask for evidence, such as utility bills showing usage of services, driving licence as proof of address, or receipts or other proof of moving costs.
• It will ultimately be a matter of fact whether the property is unoccupied and substantially unfurnished. Local authorities will be aware that under Schedule 3 of the Local Government Finance Act 1992, civil penalties can be applied to a person who deliberately supplies false information. In addition, the provisions of the Theft Act 1968 apply to council tax. Where there is a question mark over occupation/furnishings it may be worth bringing this to the attention of residents and asking them to verify these facts in that light.

As mentioned above, this is the Department’s informal view; interpretation of legislation is in the first instance, a matter for the local authority, with definitive interpretation the responsibility of the courts.    

Hope this is of some help. Interested to hear what others say too.

David

David Clough (Empty Homes Team Manager - Cornwall Council)

Hi

This is a really interesting case and raises more questions for me than unfortunately being able to provide a definition of an empty property. We will tackle properties that have the council tax status of 'second home' if they are not used as such.

Can you explain what the 'fault' was and the circumstances around it. Did the neighbour complain to the Ombudsman because you did not tackle an empty property you considered to be a second home or did the owner complain because you suggested it was really empty and wanted to take action? What was the council tax classification at the time of the complaint? 

I always thought the Council Tax classification was a bit of a misnomer and not always relevant to empty homes work. I have dealt with a number where relatives of a deceased person beautifully maintain the furnished home of a deceased, for years but never claim them to be second homes. Does this Ombudsman reasoning now mean we would have to leave these alone as they are capable of occupation? I've sat with crying beneficiaries thanking me for forcing them to move on by treating these as empty homes and sensitively requring action.

Again, we will tackle those classed as second homes on council tax where the condition of the property is deteriorating or the gardens are becoming overgrown / general environmental issues  evident.

Would it satisfy the Ombudsman if our definition made it clear that we also consider properties empty that are furnished and capable of occupation but where there is no evidenced/reported periodic occupation? Just a thought.

I am also quite happy to apply HHSRS to properties claimed to be second homes and ask for inspections where I am concerned that there may be cat 1 or 2 hazards present.  If however, the owner then confirms this is really a furnished empty property and is willing to work on a programme of renovation, I'll hold off on an inspection so they can crack on.

Interesting .....

Sue Li

Compulsory Purchase and Enforcement Officer

Derby City Council