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HPA 2016: Proposed new offences affecting landlords and property agents

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06/02/2018

We have previously reported [1] on the Housing and Planning Act 2016 (HPA) as it passed through Parliament. The Act introduced a range of reforms intended to help more people to own their own home, to get the nation building new homes faster and also to ensure that the way housing is managed is fair and fit.

With regard to management of housing, one of the key reforms relates to “Rogue Landlords”. The HPA provides that Local Housing Authorities can apply to the First Tier Property Tribunal for a ‘Banning Order’ of at least 12 months, prohibiting a person convicted of a banning order offence (as defined by section 14 of the Act) from letting a house or working as a lettings or property managing agent.

In December 2017, the Government published its response to the consultation it commissioned a year earlier. This includes its response to its proposal to treat relevant (1) housing, (2) immigration, (3) serious criminal and (4) other criminal offences as “banning order offences”, for the purposes of the HPA. The Government reported that it received 223 responses to these proposals, from various organisations and individuals across the housing sector and it has now published the outcome of the consultation.

Housing Offences

Respondents were asked whether they agreed that the relevant housing offences, set out in the consultation document of December 2016, should be treated as banning order offences [2]. A significant 84% of respondents agreed, demonstrating strong support for the proposals.

Respondents were also asked whether any other existing offences, for which a Local Authority has powers to prosecute, should also be treated as banning order housing offences. 46% of respondents agreed. As a result, the offence of providing false or misleading information (under the Housing Act 2004) has been included within the list of relevant housing offences. Other offences that were suggested by respondents have been included within the category of “other criminal offences” in the Government’s response.

Immigration Offences

Respondents were asked whether a landlord convicted of letting a property to an illegal immigrant under Part 3 of the Immigration Act 2014 should constitute a banning order offence. The majority of respondents (68%) agreed with this proposal. Of the 32% of respondents that did not agree, many were concerned the proposal would increase the risk of discrimination against potential tenants.

The Government concluded that the risk of discrimination was low, and by making the offence a banning order offence, it was merely implementing a new-sanction for a pre-existing offence.

Serious Criminal Offences

Respondents were asked whether they agreed that certain serious criminal offences committed at or in relation to a “dwelling in England, or in the local area where the offender owned or was involved in the management of the premises” should be regarded as banning order offences.

This received overwhelming support – 89% of respondents stated that an offence under the Fraud Act 2006, for which the offender was sentenced in the Crown Court, should be regarded as a banning order offence. A further 87% of respondents stated that offences involving the production, possession or supply of all classes of drugs and/or managing premises where drug dealing takes place should be regarded as banning order offences. 90% of respondents also agreed that offences under Sch 15 of the Criminal Justice Act 2003 (specified violent and sexual offences) should be regarded as banning order offences.

In light of the significant support, the Government considered that any offence involving fraud, the production, possession or supply of illegal drugs and violent and sexual offences should be included within the list of banning order offences, provided there is a link between the crime and the property and/or the tenant.

Other Criminal Offences

84% of respondents stated that certain other criminal offences should also be regarded as banning order offences, while 66% of respondents stated that a link should be established between the property and the offence to qualify as a banning order offence. The Government agreed that it was “sensible and proportionate” that an offence committed by a landlord should only be a banning order offence if there is a link between the offence and the property or tenant. In response, the Government has prepared a list of the other offences that are most likely to be committed against tenants for the purposes of inclusion in the HPA.

Outcome

The Government will now proceed to introduce statutory regulations specifying what offences are to be regarded as banning order offences for the purposes of the HPA.

Banning orders for rogue landlords and managing agents are expected to come into force on 6 April 2018.

WM Comment

Banning order offences are to be introduced in an attempt to combat the issue of rogue landlords and agents. It is possible that this initiative will aid Local Authorities to tackle this problem. However, the success of implementing this will of course depend on whether Local Authorities have the means and capability to enforce their statutory powers.

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[1] See our earlier articles: https://www.walkermorris.co.uk/publications/abandoned-properties-and-rogue-landlords-new-laws-proposed-in-the-housing-and-planning-bill-2015-16/; and https://www.walkermorris.co.uk/publications/housing-planning-act-2016-headline-changes/
[2] The proposed list of banning order offences as set out in the Government’s Consultation Document of December 2016 is as follows:
Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977;
Any of the following offences under the Housing Act 2004:
Failure to comply with an Improvement Notice;
Offences in relation to licensing of Houses in Multiple Occupation (HMOs);
Offences in relation to licensing of houses under Part 3 of the Act;
Allowing a HMO that is not subject to licensing to become overcrowded;
Failure to comply with management regulations in respect of HMOs;
An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;
Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;
An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005

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