Regular readers will know as an enforcement officer I have never been a fan of prosecution under the Protection from Eviction Act for harassment and illegal eviction.
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’
- Money
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.
hbWelcome says
No problem with the RRO part.
The £30,000 fixed penalty powers is bonkers though and will be abused by anti-landlord councils acting as judge, jury and executioner.
No beyond reasonable doubt, not even on balance of probabilities.
The FTT will be busy.
Ben Reeve-Lewis says
No thats just paranoid bonkersness HB. The problem with the penalty is that the council still has to prove major breaches of law beyond reasonable doubt, just as they would in a prosecution case. It is so hard to get rogue landlord’s prosecuted in court on the same standard that 90% of them get away with it anyway.
I will state this categorically, normal decent landlords have nothing whatsoever to worry about with RROs because they dont do the kinds of things RROs were invented for PLUS enforcement officers have better things to do with their time than chasing normal landlords for breaking laws they didnt know existed. Believe it or not we can tell the difference between criminals and amateurs you know. we know exactly who are the local people of interest because we deal with them on a wide variety of offences on the same properties year in year out..
You are right on one thing though, the FTT is certainly going to be busy if I have anything to do with it but I guarantee you this, not a person will get penalised or subjected to an RRO who dosent seriously overstep the mark and refuse to comply with reasonable requests, brought by understaffed, under-resources enforcement teams who dont have the wherewithal to chase down pointless cases that wont get past the FTT.
No enforcement officer is on any sort of witch hunt against landlords, only against the ones who force people to live in slums and then illegally evict and harass them when they ask the council for help. There are loads of them, enough to warrant rafts of legislation and to have kept me almost on permanent over time for 27 years
sam says
I bet these provisions will be abused (I recently read a story where said officer wanted a brand new £5k kitchen when the existing one was fine). What I find laughable is labour still act like the tories have done nothing to regulate landlords, when Its seems at least to me they have gone further than labour ever did 1997-2010. Especially when you factor in the tax side they certainly have. Meanwhile if the tories truly hated renters (like labour said) why have they done next to nothing to help ‘decent’ LL evict rogue tenants? Such as a emergency eviction clause for extensive damage or even not doing the requirments for sec 21 in the deregulation act?
hbWelcome says
“The problem with the penalty is that the council still has to prove major breaches of law beyond reasonable doubt, just as they would in a prosecution case.”
No they don’t Ben, and that is the problem.
From next month, councils will be able to levy a fixed penalty of up to £30000 per offence without having to prove anything. It is only on appeal that they have to prove it. Anti-landlord councils will abuse this power.
As per my very first comment on the subject, I have no problem with RRO’s.
hbWelcome says
This feller seems to know what he is talking about;
https://www.anthonygold.co.uk/latest/blog/housing-planning-act-starts-bite
Ben Reeve-Lewis says
I really sometimes wonder why I bother writing here, as I’m sure you do too
Ben Reeve-Lewis says
@Sam, I wholeheartedly agree with you Sam, it has taken a Tory government to introduce additional powers to deal with rogue landlords. The problem is not new, it happened under Labour who brought in the Housing Act 2004 provisions but very little else but why is it, whenever regulating rogue landlords comes up on this site as topic that the debate immediately gets turned around to “Yeah but what about rogue tenants”?
I also dont understand your comment about the council officer and the £5,000 kitchen. there is no legislation that allows a council enforcement officer to insist on a £5,000 kitchen or a kitchen of any price if the existing one fulfils the need and is safe to use. Socoial landlords abide by the decent homes standard (although not always) and this requires kitchens and bathrooms of moderate modernity. Is the story you once read confusing issues?
@HB you really need to get over this paranoid idea that councils are on an anti landlord witch hunt. As I point out above nobody is going to waste their time chasing a case that wont stick. Enforcement officers are like any other human being in any other job – too busy to bother pursuing pointless exercises. also, enforcement officers who see the worst of the worst on a daily basis are only bothered by the repeat offenders who wont play ball, not the vast majority of landlords who dont trouble their inbox.
There is nothing more frustrating than spending months of your time, dicking about on complex and tedious paperwork just to have a case fall at the last hurdle. Its best not to even start, in fact motivating yourself to bother is one of the major challenges
Ben Reeve-Lewis says
Also HB take a look at the schedule for imposing a penalty. Hardly what you would call a hair trigger
SCHEDULE 1
Financial penalty for breach of banning order
Notice of intent
1Before imposing a financial penalty on a person under section 23 a local housing authority must give the person notice of its proposal to do so (a “notice of intent”).
2(1)The notice of intent must be given before the end of the period of 6 months beginning with the first day on which the authority has sufficient evidence of the conduct to which the financial penalty relates.
(2)But if the person is continuing to engage in the conduct on that day, and the conduct continues beyond the end of that day, the notice of intent may be given—
(a)at any time when the conduct is continuing, or
(b)within the period of 6 months beginning with the last day on which the conduct occurs.
3The notice of intent must set out—
(a)the amount of the proposed financial penalty,
(b)the reasons for proposing to impose the financial penalty, and
(c)information about the right to make representations under paragraph 4.
Right to make representations
4(1)A person who is given a notice of intent may make written representations to the local housing authority about the proposal to impose a financial penalty.
(2)Any representations must be made within the period of 28 days beginning with the day after that on which the notice was given (“the period for representations”).
Final notice
5After the end of the period for representations the local housing authority must—
(a)decide whether to impose a financial penalty on the person, and
(b)if it decides to impose a financial penalty, decide the amount of the penalty.
sam says
Ben,
The council officer did not compel him to get a new kitchen but intimated and some may say threatened that he should. So a more submissive landlord might have acted on that.The reason I bring up rogue tenants is because in essance that good tenants are subsidizing the bad.
As for no council will have a witch hunt on LL. What about Liverpool council that wanted biz rates on student dwellings? I get wanting the council tax but rates? That would run into the thousands and thousands when a average property would probably only get said LL no more than 15k which factored in that he may already be paying 40% tax it would make it un viable. They made the comparrision with Hotel/Holiday lets which as you will know are more expensive to say the least. Or some councils want council tax per the room in HMO’s which given these cater to the poorer in sciety this puts a huge increase in cost to either LL or tenant. Which I find again unfair given you could have in theory a family of 6 professionals using same amount of services and pay 1 council tax but just because people are unrlated in a HMO said council wanted x amount more.
hbWelcome says
What is so hard about that Ben? It is nowhere near as complicated as bringing a prosecution.
Serve notice of intent.
Pay lip service to any representations.
Serve final notice.
If they pay up or ignore it, job done.
If they go to appeal and it looks a bit iffy, pull out before.
It is guilty until proven innocent (unlike RRO’s which is the other way round).
Ian says
I think we could all agree on the need to speed up the court system both for both civil and criminal housing cases. Therefore Ben can you get the likes of shelter etc to cooperate with the NLA or RLA to feed daily stories to the press about the hardships coursed by our dysfunctional court system.
PS, Ben I have seen cases with councils intimating landlords by claiming for exmple there is a legal minimal room size, where the law in fact says the council must consider each case on its own, and can’t just full back on a document they have written to show what is “reasonable”.
Dave Griffith says
Ben,
“Believe it or not we can tell the difference between criminals and amateurs you know. we know exactly who are the local people of interest because we deal with them on a wide variety of offences on the same properties year in year out”
In which case what is the point in registering and licencing all landlords? As far as I can see you will just waste a lot of money generating a lot of paperwork that nobody will have time to study, in order to find out something you already know.
“whenever regulating rogue landlords comes up on this site”
Now there’s an idea I think would be popular – concentrate on the rogue landlords, you know who they are, and leave the rest of us alone.
I don’t share your trust in councils to impose penalties fairly given their record on dishing out dubious parking tickets and telling you to appeal it if you disagree. I know of many cases of utility company vans wrongly getting tickets, often in closed off roads, because the wardens know the companies will pay them rather than have a manager waste half a day attending an appeal tribunal.