Lessons to be learned from Nottingham Letting Agent Prosecution

Protection from Eviction Act 1977

As a Tenancy Relations Officer, your main legal weapon is the Protection from Eviction Act 1977, which defines both harassment and illegal eviction as criminal offences.

You work with other legislation as well but that’s the main one.

I have written widely, on this blog and elsewhere about the poor record of magistrates when it comes to fines under this Act when compared to the penalties awarded in civil courts, I won’t labour the point here.

The difficulties with PFEA prosecutions arise from three main factors:-

• Due to cuts in council budget’s, TROs are now akin to Spix’s Macaw, the world’s rarest bird.
• The changing profile of rogue landlord activity over the past decade, where the old chancers are being replaced by committed criminals, using aliases, fake companies and multiple layers of obfuscation.
• The difficulty in maintaining contact with tenants over the time it takes to get a case into a criminal court.

The first two are reasonably new but the last one has always been a big challenge

Timescales

The fastest I have ever had a PFEA case in court, which was a straightforward, well-evidenced, open and shut case of illegal eviction, was 18 months from lock change to standing in the dock at Wells St Magistrates.

This may be down to London court allocation times but while newly evicted people are understandably angry and wanting the book thrown at the landlord or agent, 18 months later they have usually moved on with their lives and have little interest in being involved as a witness in a council case who essentially gets little out of the process.

I tend to find that the tenants become progressively slower at responding to emails and phone calls until they stop altogether.

Whilst applauding the concept of the Protection from Eviction Act I have long had serious misgivings about its modern application. Something else I have written widely on but I am often misunderstood when I mention my lack of enthusiasm for it.

My attitude has never been one of:-

“What’s the point of going after rogue landlords?”

Nothing could be further from the truth. After 28 years I retain a zero tolerance that makes me seem like an extremist even among other TROs who often regard me as lacking sympathy or anything that might hint at middle ground.

In truth, my view is:-

“There are more ways to skin a cat”

and the edge on the skinning knife of the PFEA started to dull a long time ago.

Successful prosecution

So I read with interest this piece in a recent edition of Environmental Health News  where Nottingham City Council successfully prosecuted agent  Rehaan Ul-Haq Rashid, apparently managing a property full of students for his brother, the owner.

He was intimidating towards the female tenants, would arrive at the property unannounced at 11pm and acted aggressively towards all occupants.

Standard TRO type stuff to deal with there but Nottingham didn’t use the PFEA, instead they used a combination of Housing Act offences, property management regulations and the Consumer Protection from Unfair Trading Regulations.  He was fined a total of £30,000 and received a four month suspended prison sentence for the threatening behaviour among other things.

EHO manager for Nottingham, Richard Chubb is quoted in the article:-

“We believe that this ground-breaking case demonstrates that combining consumer and housing law makes for a powerful tool for enforcers. Overall, we are satisfied with the result”.

Nottingham ably exhibits this as they delivered the coup de grace, whereby the perpetrator also had his minicab driver’s licence revoked for not being a fit and proper person to hold one as a result of the prosecutions.

The thing to understand

With criminal landlords – they aren’t just doing one thing at a time. When I started in this game in 1990 it wasn’t like that. Apart from a couple of notable criminals, the sector wasn’t generally used for systematic and organised cash cultivation by any means necessary.

The modern criminal landlord who threatens their tenant is the kind of landlord who has little compunction in evading licensing or HMRC, ignoring repairs, HB fraud and theft of utilities. This is why a multi-agency approach is so important.

Different enforcement officers have different powers under different pieces of legislation. It’s a case of finding the rights tools for the particular case.

Things have moved on

Given the difficulties with the PFEA I mentioned above and the increase in council powers brought in by the Consumer Protection regulations and the Housing and Planning Act, the PFEA is in my view, no longer the key piece of legislation it once was.

A PFEA prosecution has a role to play when it comes to banning orders and I would still do it for that alone but there are far more tools in the shed now that have an even greater effect – as shown in the Nottingham result.

There is an inherent problem when the basis for a criminal case rests on people, their testimonies and statements. As I said above, they have a tendency to move away or simply be unreliable.  But legal action based on property is a better bet. The house can’t move to Dundee or stop returning your phone calls.

Civil compensation claims for harassment and illegal eviction are more punitive, Its also quicker, less complicated and the tenant gets something out of it.

Its all about the money

The money is the reason that the profile of the rogue landlord has changed so much from the amateur to the professional criminal.

The broken-nosed knuckle-dragging Bolt-head of the 1990s having been replaced by an arrogant, laugh in your face flash ‘Arry, is all down to the amount that can be made from renting these days.  As long as you don’t play it by the rules, work the system and exploit the complexities of law and the shortage of enforcement staff in local authorities.

The higher the penalties when they get caught is the best possible disincentive and I frankly care not one jot whether that penalty is awarded via failing to licence, breaching consumer protection regulations or the good old PFEA itself.

People talk about the value of a landlord or agent having a criminal record, which they get when prosecuted under the PFEA but most of the people I deal with either already has one or don’t give a toss.  I laugh out loud at council press releases where an appointed councillor says:-

“This £200 fine sends a serious message”.

No, it doesn’t mate, the message it sends is:- 

“Hey don’t worry about it”.

I’ve never had a criminal landlord appeal against a PFEA fine – but they do when its £30,000 civil damages.

So, what’s the answer?

The only way to tackle the modern criminal landlord is through multi-agency intelligence sharing and enforcement, using all pieces of legislation available. This has been the theme of every conference presentation I have done in the past 4 years.

Make the exploitation of the occupiers of the PRS become too risky as a financial proposition and the exploiters will move into other spheres.