Simply because in the vast majority of cases the criminal judiciary don’t take these offences seriously enough and often award paltry fines that make it a cost friendly alternative to actually paying to obtain a possession order.
Is a civil claim quicker?
Civil claims are quicker, the evidence test is less stringent and they usually result in large damages that go to the tenant, not a fine that goes to government.
Yes, the landlord gets a criminal record but trust me, in rogue landlord land a criminal record is no deterrent at all, so many of them have already got one.
There are two ever-present themes in being a rogue landlord:-
- Control, as in ‘Its my house and I am the master and will do whatever I like’
Often there is a blend of the two but not always. There isn’t much anyone can do about the attitude but there are things that can be done about the money.
Since 2004 council enforcement officers have had the option of registering a Rent Repayment Order (RRO) on landlords who have not licensed their HMO.
They have had a lacklustre history, though, with not many councils really employing them. I am advised by Environmental Health Officers of my ken that the forms are tricky and the procedure too bureaucratic. I’ll have to take their word for it as I haven’t done one myself.
However, I was involved in 2 RROs taken out against the same persistent offender which amounted to £84,000. My kind of penalty and certainly a deterrent.
So what is an RRO?
They are obtained from the First Tier Tribunal (FTT….doncha just love all these acronyms?) upon a landlord being prosecuted for not licensing their HMO. They allow the council to claw back all the housing benefit paid on a property for the past 12 months and a tenant to also claw back all the rent (not HB) paid during the same period, but only if the council prosecuted.
Imagine an RRO on a large HMO of 10 people all paying £600 per month; £72,000 in case you aren’t quick enough on the maths. Certainly a significant penalty.
The rules are changing on RRO’s
The Housing and Planning Act 2016 has thrown a very significant googly into the mix by changing the rules on RROs to council and tenant advantage.
The first element having come in on the 10th March 2017 and the final piece falling into place on 6th April 2017.
RROs will be able to be used by both local authorities and tenants for more than just failing to licence an HMO, extending the power to also deal with
- forcible entry to the property, (a breach of section 6 of the Criminal Law Act 1977),
- harassment and illegal eviction under the (Protection from Eviction Act 1977),
- failure to comply with improvement notices and prohibition notices served,
- control and management of unlicensed houses and HMOs, and
- breach of a banning order.
The latter of which will be in force in October 2017.
Another Important change:-
A landlord doesn’t even have to be prosecuted first.
Section 43 (1) of the HPA states:
“The First-tier Tribunal may make a rent repayment order if satisfied, beyond reasonable doubt, that a landlord has committed an offence to which this Chapter applies (whether or not the landlord has been convicted).”
A phrase to warm the hearts of anyone in my business.
Tenants can claim back their rent, according to section 44 of the HPA for forced entry by a landlord, harassment and illegal eviction for a period of 12 months ending with the date of the offence.
Having said all this, my initial optimism is I’m sure going to be tempered by experience and frustration when it comes to rolling these things out.
We don’t know what attitude the FTT are going to have to such applications, particularly the phrase “Satisfied beyond reasonable doubt”.
In addition Section 44 (4) states:
In determining the amount the tribunal must, in particular, take into account:-
(a) the conduct of the landlord and the tenant,
(b) the financial circumstances of the landlord, and
(c) whether the landlord has at any time been convicted of an offence to which this Chapter applies.
On point (a) tenants will have to be as innocent and snow white as…..well snow white, for the FTT to decide they have been blameless in the actions and in the real world this isn’t always the case, as I find with injunctions.
At some point even the most even tempered of tenants will push back following weeks or months of harassment, sometimes causing judges to take the view that its 6 of 1, half a dozen of the other. Trust me, I’ve been there!
On point (b), many rogues I have dealt with are past masters at pleading poverty whilst owning numerous properties.
I was once a witness in a case where a Mercedes driving ‘mouth on legs’ of a landlord with a colourful vocabulary you would buy tickets to hear, turned up in court bent with age, holes in his cardigan and the services of a young interpreter, saying he couldn’t speak English and the judge bought the whole package, virtually helping him out of his chair at the end of the hearing.
On the final point (c) well this might sway me to go for a PFEA conviction first after all, if it is going to make the difference between the tenant getting their money back and not.
Trouble is the length of time they take to get in London. I don’t think I have ever had a criminal case in court in less than a year after the offence.
So we shall see.
Cautiously optimistic but experienced enough after 27 years to place quotation marks around the word “Cautiously” and write it in a smaller font.