In this week’s instalment of #ExpertView, Tessa Shepperson of LandlordLaw continues her legal series, focusing on banning orders.
The Housing and Planning Act 2016 provided for banning orders finally coming into force in April 2018.
The first thing to say is that these regulations only apply in England. So, if all your properties are in Wales, guidance in this blog will not apply
Secondly, most landlords are unlikely to be the subject of a banning order. They will only apply where landlords have been convicted of a ‘banning order offence’.
The full list of offences that can incur a banning order are detailed in the schedule of The Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018. A banning order offence can only be made in respect of an offence committed after the regulations came into force.
There are basically two types of offence:
These are regulations which are specifically about housing-related issues. For example:
However, unlike the housing related offences
There are a vast number of offences either listed specifically in the statutory instrument or which are listed in the Criminal Justice Act 2003.
A banning order can only be made after an English local housing authority has made an application to the First Tier Tribunal (FTT). The making of the order will not be immediate or indeed inevitable. The Local Authority must first give notice to the landlord or agent concerned and they will be given an opportunity to ‘make representations’ within a 28 day ‘notice period’.
The Local Authority cannot apply to the FTT until after the notice period has expired and also cannot give notice more than six months after the conviction.
If an application is made to the FTT these are the things that they must consider when deciding whether or not to make a banning order:
There is a right of appeal to the Upper Tribunal, and also to apply to revoke or vary a banning order once it has been made.
Banning orders will prevent those convicted from:
The banning order will be in force for a specified period of time which must be for at least 12 months.
The order may contain exceptions, for example to allow a landlord to deal with existing tenancies and to allow agents to wind down their business.
Note also that the licensed HMO landlords will need to arrange for a new manager if they retain ownership and any HMO license they hold will be revoked. Certain ‘disposals’ of property will be prohibited, for example a banned landlord cannot sell his/her property to a business associate or person associated with the landlord.
If you want to find out more about banning orders, guidance has now been published for Local Authorities which can be found here.
As I said at the beginning, most landlords and agents are unlikely to be the subject of a banning order. They are aimed at the serious criminals and rogues.
However, the fact that they are now on the statute book and are a possibility (even if only a remote possibility) means that landlords and agents should take extra care to ensure that they are compliant at all times with the ever-increasing housing regulations.
A banning order, if made, would have a catastrophic effect and could effectively end your business.
There is a wealth of help and guidance available online including, Landlord Law Blog (free) and my Landlord Law online service (paid), along with our Easy Law training services and the annual Landlord Law Conference.
The various landlord associations such as the Residential Landlord Association (RLA) also provide training as do ARLA Propertymark and Royal Institute of Chartered Surveyors (RICS) for letting agents.
Remember that 100% protection is only available if there is 100% compliance.
About the author
Tessa is a lawyer specialising in landlord & tenant law and runs the popular Landlord Law online service for landlords.
About Landlord Law
Landlord-Law Online is the brain child of landlord & tenant lawyer and author Tessa Shepperson. Landlord Law members join online and then gain access to the extensive information and documents provided in the password protected part of the site.
There is also a members discussion forum where members can ask Tessa questions.
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