Abigail E. Jackson and Julian Sidoli del Ceno

Prosecuting the Private Rented

Sector:

Using the Criminal Courts for Enforcement and Housing Dispute

Resolution

Criminalising Landlords – A (Very) Brief History

• Landlords have always been subject to the general provisions of the criminal law (i.e. assault, theft etc)

• It was only in the 1960s in response to the activities of Perec Rachman that the Government made unlawful eviction and harassment a criminal offence

• Following the deregulation of the private rented sector in the 1980s, many rogue operators entered the market, letting out properties that were overcrowded and in poor condition

• In response, the Government introduced licensing for HMOs and designated areas in the Housing Act 2004, with criminal penalties for non-compliance

Why Should We Criminalise A Landlord’s Bad Behaviour?

• An increasing number of individuals are living in the private rented sector (particularly families with children) who should be protected from the bad behaviour of rogue landlords

• A landlord interfering with a tenant’s home can have a real effect on a tenant’s sense of wellbeing and self-esteem

• There is a wider appreciation and understanding of the concept of “home”: see Article 8 of the European Convention on Human Rights; Radin and Fox O’Mahony

• Criminalising landlords can act as a deterrent: it will encourage other landlords to act responsibly and maintain their properties

There Is A Move Towards Using the Criminal Courts for

Housing Matters• Guidance published by the Department for Communities and

Local Government in August 2012 encouraged local authorities to prosecute rogue landlords

• Local authorities are prosecuting private landlords under Housing Act 2004 and the Management of Houses in Multiple Occupation (England) Regulations 2006

With these Cases:

• Local authorities may be able to recover monies from the landlords under the Proceeds of Crime Act 2002, even though rental income from an unlicensed property is not a benefit from the proceeds of crime – see: Sumal & Sons (Properties) v. Newham LBC [2012]

There Is A Move Towards Using the Criminal Courts for

Housing Matters• In December 2014, the Chartered Institute of Environmental

Health published a list of all of the property companies that had been convicted of offences under Housing Act 2004 after it made a complaint to the Information Commissioner

• The list showed that Aspire Group Developments in Burnley had been prosecuted on five separate occasions for offences under the Housing Act 2004, while the highest fines of £23,000 and £40,000 were imposed on two companies owned by Mehmet Parlak, Watchstar Limited and Watchacre Limted

• Many commentators believe that this information will help local authorities tackle the problem of rogue landlords and inform any assessment of whether they are a “fit and proper person”

But Not All Criminal Cases Are Being Prosecuted….

• Empirical research by Cowan et al for the Department for the Environment, Transport and the Regions in 1999/2000 indicated the number of prosecutions of landlords for unlawful eviction and harassment is low

• Amongst other things, the research found that:• Many complaints against landlords were resolved at an

early stage • Prosecutions can be costly and time-consuming for local

authorities• Tenants may not want to give evidence at a criminal trial• Sanctions are often inadequate

While Civil Lawyers Are Bringing

Housing Claims in the Magistrates’

Court.......

The Problems Facing Housing Lawyers

• Shelter has:

• Closed 9 offices and made 100 staff redundant after the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

• Had its fee-income reduced by 50%

BUT THIS IS NOT ONLY HAPPENING TO SHELTER!

• There are “advice deserts”: there are no publicly-funded lawyers in Suffolk or the London Borough of Bexley, while 23 other areas only have one housing provider

• 46 providers have withdrawn or are in the process of withdrawing from the legal aid market

The Problems Facing Housing Lawyers

• In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA 2012”) removed legal aid for claims involving:• Mortgage Repossessions• Nuisance• Benefits• Tenancy Deposits

NOW:

• Legal aid is only available where:• The Client is Homeless • The Client’s Home is at “Immediate Risk” • The Client’s Home is in Such a State of Disrepair that

their Health is being Threatened

The Problems Facing Housing Lawyers

• LASPOA 2012 changed the way that civil litigation was funded, making it more difficult for lower-value cases to be brought in the county courts

• Success fees are no longer recoverable from the Defendant

• The cost of ATE Insurance is no longer recoverable from the Defendant

• Legal fees are no longer recoverable from the Defendant in cases with a value under £10,000 (i.e. EUR 13,500)

• Consequently, many housing claims are no longer financially viable

Is this the End of the Story?

Tenants Are Using the Criminal Courts for

Housing Matters

• A tenant may bring a claim against a landlord under the Environmental Protection Act 1990 if the premises are “in such a state as to be prejudicial to health or a nuisance”

• A tenant can apply to the Magistrates Court for an abatement order, damages and costs

• This can cover issues such as:• Mould and dampness• Poor heating• Poor insulation• Rodent infestations

Tenants Are Using The Criminal Courts for

Housing Matters• It is a SIMPLE PROCEDURE:

• Tenant writes to the landlord giving at least 21 days’ notice of his intention to start legal proceedings under s. 82 EPA 1990

• The notice must specify the name and address of the landlord, the name and address of the tenant, as well as a description of the nuisance

• No requirement to provide a surveyor’s report or an indication of the remedial work that it required

• After the notice has expired, the information must be laid at the Magistrates Court within 6 months

• Magistrates Court will list this matter for trial

Tenants Are Using the Criminal Courts for

Housing Matters

AT THE HEARING:

• The landlord must plead ‘guilty’ or ‘not guilty’

• The tenant must prove beyond reasonable doubt that the alleged nuisance: (i) existed at the date of the notice; and (ii) exists at the date of the hearing or is likely to recur

• If the landlord is found guilty, the court can make an order for damages in favour of the tenant, as well as an order requiring the landlord to abate the nuisance

• Damages can include compensation for personal injury: the strict rules on causation and foreseeability do not apply – it is enough for the court to be satisfied that the tenant has suffered as a result of the nuisance and that it has caused harm (see: R v. Derby (1990))

Tenants Are Using The Criminal Court for Housing

Matters

COSTS:

• The tenant will be awarded costs if the landlord is found guilty OR if the tenant can show that the alleged nuisance existed at the date of the notice

• If the tenant loses: they do not have to pay the landlord’s costs

• A tenant can fund their case against a landlord using a conditional fee agreement with an uplift (see s. 58A Courts and Legal Services Act 1990)

• There is no reason why a tenant cannot bring concurrent proceedings against a landlord in the civil and criminal courts

THE END