Comment

Banning Order stops landlord from letting property for five years

Thursday, September 19, 2019 - By Robin Stewart, Solicitor, Anthony Gold Solicitors

Robin Stewart, Solicitor, Anthony Gold Solicitors

A banning order has been made against a landlord in Telford, David Beattie. The order will prevent Mr Beattie from letting housing in England (or engaging in letting or property management work) for a period of five years, subject to an exception allowing him to deal with some existing tenancies.

Banning orders were introduced by the Housing and Planning Act 2016 and were aimed at forcing the worst landlords and agents out of the sector. This new power was introduced to address the problem of repeat offenders who had committed multiple offences but continued to operate in the private rented sector. Until the introduction of banning orders there was not much that councils could do to deal about repeat offenders (although the London Borough of Haringey had a notable success in obtaining a Criminal Behaviour Order banning Katie Goremsandu from managing the properties she owned in Haringey and Westminster).

This banning order is thought to be the first ever imposed (it is certainly the first to be widely publicised). It has taken a while for any banning orders to be made, but this is not surprising as local authorities had to prosecute offences committed after 6 April 2018 before they could proceed with applying for a banning order. This case might be the first of many to come.

Banning orders are made by the First-tier Tribunal following an application by a local authority. The authority must demonstrate that the landlord has committed a ‘banning order offence’ and serve a notice on the landlord before starting proceedings in the tribunal.

The various banning order offences are listed in The Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018, and they comprise a mixture of offences specifically relating to rented property (such as unlawful eviction under the Protection from Eviction Act 1977) and other serious offences if they were committed in a context that was connected to a tenant or a rented property.

Since banning orders are aimed at the worst offenders it comes as a surprise that this pioneering case was brought by Telford & Wreckin Council after a prosecution which resulted in Telford Magistrates imposing a fine of just £284. The fines imposed on landlords are often quite perplexing but a fine this low would usually be a strong indication that the offence was not serious.

The tribunal disagreed, and made little effort to disguise their view of the fine imposed by the magistrates:

The Tribunal accords the greatest respect to the sentencing Bench. However, the Tribunal is not bound by the sentence imposed by the Magistrates. <…> What the Tribunal must look at is the seriousness of the offence and not the penalty imposed.

There is an important lesson for local authorities here: if the criminal courts do not think that an offence was worthy of a large fine, that does not mean that it is impossible to persuade the Tribunal otherwise. In what reads as almost a pitch for work, the tribunal then notes that they have considerable experience of determining financial penalties: the reader is left in no doubt that they would have allowed a much higher fine than £284. The tribunal’s decision paints a colourful picture of the landlord in question and it is clear that in places he did not help his own cause with comments he made during the case.

The tribunal’s decision to impose a banning order (and a rent repayment order at the same time) contains many interesting points of legal interest. The tribunal deftly avoids the trap of labelling offences committed before April 2018 as banning order offences (no offence committed before 6 April 2018 can be a banning order offence) but then concludes that these offences can be taken into account as probative evidence of “the landlord’s propensity to flout his legal obligations and harass his tenants”.

The tribunal decided not to take into account convictions which were spent under the Rehabilitation of Offenders Act 1974, noting that the guidance issued by the Government stated that such spent convictions should not be taken into account when determining whether to apply for and/or making a banning order. The role of spent convictions in HMO licencing and related appeals will be examined by the Upper Tribunal in a forthcoming decision (Anthony Gold Solicitors acted for the landlord) and it is likely that the Upper Tribunal’s decision will have wide implications for the how the spent convictions of landlords and agents are dealt with by local authorities and the tribunal when considering issues such as whether a landlord is a ‘fit and proper person’.

One other curious detail of this case is that the Tribunals decision is available for the public. Local councils are encouraged to publicise banning orders by the Government’s guidance but the Rogue Landlord’s Database (where the local authority must add details of the banning order) is not available to the public. The Government is currently consulting on opening up that database to the public, and this would allow prospective tenants to discover details of banning orders (or criminal convictions) before signing a tenancy agreement. However, for the moment that database and the details it contains are not public. But as the tribunal’s decision is available to the public, all of the details of this case including the landlord’s name, property portfolio and length of ban can be found in seconds through a simple Google search.

The author of this blog, Robin Stewart, Solicitor in the Housing team at Anthony Gold Solicitors. His email is ros@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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