Understanding banning orders for landlords and letting agents
Banning orders came into force on 6 April 2018 and have given power to local authorities to apply to the First-tier Tribunal (“FtT”) for a ban against private residential landlords or agents where they are convicted of committing a “banning order offence” against a tenant, other occupier of the property or the property owned or let by the landlord.
The purpose of the banning order is to prevent landlords and agents from:
a) Letting a house in England;
b) Engaging in English letting agency work;
c) Engaging in English property management work; or
d) Doing two or more of those things.
A banning order also prohibits the individual from holding a HMO licence and their property might be subject to a management order.
What is a banning order offence?
A long list of banning order offences has been published in the Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 which, if convicted, can result in a landlord or letting agent being banned from letting or managing a property in England.
The banning order offences provide for both housing and non-housing related offences. For example, an agent or landlord can be banned if they are convicted of a housing offence, including unlawfully evicting an occupier from the premises, failure to comply with improvement notices and prohibition orders or where they are found to control or manage an unlicensed property which is required to be licensed under Parts 2 and 3 of the Housing Act 2004. The non-property related offences include but not limited to: stalking, harassing, supplying drugs and theft.
When can a local authority apply for a banning order?
It is only possible for a local authority to apply for a banning order against a person or company which has been convicted of committing a banning order offence.
Where a company is convicted of committing a banning order offence, the local authority will also apply for a banning order against any officer i.e. a director of the company, who is also guilty of the same offence. Before they apply for an order, the local authority will serve the landlord or agent with a document known as “Notice of Intended Proceedings which:
a) Notifies the landlord or agent of the local authority’s intention to apply for a banning order and sets out their reasons for doing so;
b) The length of the ban- which must not be less than a minimum period of 12 months;
c) Provides an opportunity to make representations and the period to make representations by.
The local authority must invite representations from the offender within a specified period of not less than 28 days.
Once the local authority has considered a landlord or agent’s representations, it may to apply to the FtT for a banning order to be made. The decision to apply to the FtT will be considered by the local authority on a case by case basis based on its own enforcement policy. An application is likely to be made in relation to the most serious types of offences.
It is worth noting is that the local authority is statute barred from serving a Notice of Intent where more than 6 months have passed since the landlord or agent was convicted of the banning order offence.
The Government’s guidance on banning orders states a conviction cannot be taken into account for the purposes of making a banning order if a landlord or agent has been discharged from the offence or the conviction is “spent” under the Rehabilitation of Offenders Act 1974. In addition, it also says that if a banning orders is made while the conviction is subject to an appeal and a landlord or agent is successful in having the conviction overturned or it has become spent during that time, then the FtT must consider revoking or varying the banning order.
Factors that may be taken into account when making a banning order
Each local authority should have their own policy which they ought to follow when deciding whether to apply for a banning order. In particular, the Government’s guidance states that a local authority will consider a range of factors, including:
a) The seriousness of the offence;
b) Previous convictions of the landlord/ whether the landlord/ agent is included on the rogue landlord database;
c) Harm caused to the occupier;
d) Whether it is proportionate to punish the landlord/ agent; and
e) Whether it will deter the landlord / agent or others from committing a further offence or similar offence in the future.
Similarly, the FtT also has its own range of factors it can consider when making an order, including: the seriousness of the offence, previous convictions, whether the offender is on the rogue landlord’s register and the effect of the order on the offender and anyone that might be affected.
If a landlord has been convicted of an offence and has been served with a harsh sentence, then a banning order is very likely to be made. Furthermore, if a landlord has previously received a civil penalty in relation to any of the banning order offences or the occupiers have experienced any harm, then this can be taken into account by a local authority or the FtT and may justify imposing a longer ban.
It will be up to the local authority to persuade the FtT to make a banning order based on the factors identified above. The local authority will also recommend to the FtT the length of time the banning order should be made. Banning orders are likely to be made where the landlord has a history of committing relevant banning order offences so that it deters the offender from committing further offences or other landlords from committing similar offences in the future. However, that does not always have to be the case and the local authority could theoretically seek to apply for a banning order even where the landlord is convicted of only one banning order offence.
The legislation does not state a maximum time limit for a banning order and it is quite possible that banning orders can be made against a landlord or agent for a very long time, the minimum amount of time being at least 12 months. Local authorities may also decide to register the offender’s details on the Government’s database of rogue landlords which is currently not publicly accessible, including any FtT decision which may also be published online.
However, London councils which take enforcement action again agents or landlords may also record the offender’s details on the Mayor of London’s “Rogue Landlord Checker” – details of which will be available to the public for a temporary period but privately retained by the local authority for 10 years.
The Government has stated that all banning order offences are considered to be very serious and the consequences of a banning order will undoubtedly have very significant consequences for a landlord or agent’s ability to carry out business. It is therefore very important for a landlord or agent to consider taking legal advice where they have been served with a Notice of Intended Proceedings.
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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