A couple of years back the government announced to a fanfare of welcome from rogue landlord enforcement teams everywhere, plans to introduce a database of offenders and a set of specific offences that would see the little tykes banned and placed on the list.
A long time coming
This notion has been doing the rounds for years and a range of organisations had sought to get something similar off the ground, I attended several steering group committees in different projects to give my two pennies on it.
The problems in practice
These, as all acknowledged was:-
- Who would host it?
- Who would populate it?
- What would see a landlord or agent placed on it?
- For how long?
- What could they do to challenge it?
- Who would have access to it?
Probably a couple of other issues too but as you can see, as is the case with all good ideas, the basic idea of having a list of bad apples is only simple at inception stage. Making it work is quite another.
Government backing and delays
Once government nailed their colours to the mast back in 2015 things started moving forward for a national database.
I sat on the consultation panel at the Home Office and we worked through the big questions of who would host and populate it, and who would have access to it.
But other issues remained – what kinds of offences would see a landlord or agent placed on it?
Banning order list now online
A list of banning order offences was to be brought out in early 2017, then it got put back to October, then put back again to April 2018 but finally the list of banning order offences is out. But this time to a more muted fanfare amongst enforcement types. I’ll tell you why in a minute.
The list is long
The list is longer than I was expecting. Given my job, I was pleased to see offences on the harassment and illegal eviction side of things.
But there are also offences where landlords let to illegal immigrants and offences under the Fraud Act, the Misuse of Drugs Act, the Proceeds of Crime Act plus blackmail, burglary, stalking and even:-
“Prohibition of certain offences relating to Opium”.
Gas safety breaches are also in the mix, as are offences committed by company officers.
Quite a toolbox I’m sure you will agree.
So why the more reserved fanfare?
It’s in this passage from the Act’s explanatory notes:-
“Section 15 of the Act confers power on local housing authorities in England to apply to the First-tier Tribunal for a banning order against a person who has been convicted of a banning order offence”.
The landlord or agent has to be convicted first.
There are more effective ways
Whilst it is a decent safety net that only those already convicted in a criminal court will end up on the database, it does add an extra layer of procedure at a time when, most council enforcement types are looking at civil penalties and Rent Repayment Orders as the more effective way forward, where the perpetrator doesn’t have to be convicted in a criminal court before action can be taken.
These tools were given to enforcement teams at the same time that the database and banning orders were first touted in 2015 but the world has moved on in the past 2 years.
Money drives rogue landlords and agents
With rogue landlords and agents, it’s all about the money, period. If they can make more money by renting dangerous, overcrowded properties and harassing and illegally evicting tenants when they complain or bring the council to their door then they will do it.
Talking from experience
I have been criticised even by other TROs for not being enthusiastic about prosecutions brought under the Protection from Eviction Act, but it’s not that I don’t see the point of prosecuting, far from it.
I am zealously enthusiastic in fact but I just see the PFEA as one of the least effective legislative tools to deal with rogue landlords, when there are alternative routes that will cost the landlord or agent more money, which is the real penalty to them.
Personally, I don’t think that councils use Interim Management Orders anywhere near enough and the use of ‘Works In Default‘ machinery to rectify disrepair and charge the landlord is virtually unknown, which is an insane wasted opportunity.
Civil and criminal prosecutions
Civil and criminal prosecutions at the same time have always been available but from a local authority point of view the criminal route was always the main one until Rent Repayment Orders were expanded and the civil penalties brought in – and it is these new options that are changing the thinking of enforcement officers.
On the positive side of things
Civil penalties and RROS are faster, they aren’t hide-bound by the Regulation of Investigatory Powers Act, the tenants get compensation or even 12 months rent returned, the council gets to keep the penalty and the rogue landlord or agents gets a serious financial headache.
Yes criminal prosecutions will still happen and thanks to these new banning orders the perpetrators will be entered on to the database, but I don’t think it will be the main point of focus that it was expected to be, and I am all too familiar with the tendency of rogue landlords and agents to use alias’s fake companies and a variety of smokescreens to hide their identities, once brought to book.
In fact, about 30% of my time spent on any case is in tracking names, companies, addresses, and aliases just to find out who the real landlord is and where they can actually be found.
So whilst I wave a flag in welcome of the new banning order offences, it is a smaller and less colourful flag than it would have been 2 years ago. Perhaps more of a pennant. The colleagues I have spoken to this morning feel the same way.
In advance of any comments that may appear in response, please be clear that normal Landlord Law Blog readers won’t ever encounter civil or criminal penalties. You really have to go some to be on the wrong end.
These new offences, RROS and civil penalties have been brought in to help enforcement teams tackle rogue operators, who occupy a world far removed from the vast majority of normal landlords just going about their business.
Nobody will ever end up on a database or subject to an RRO by accident, none of these sanctions is like handing out a parking ticket.