Prosecuting the Private
Rented Sector:
Using the Criminal Courts for Enforcement and
Housing Dispute Resolution
Abigail E. Jackson and Julian Sidoli del Ceno
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