Safer Renting recommendations to tackle the Shadow Private Rented sector.
As one of the few organisations operating solely in the criminal end of the rental business, we are well placed to see the abuses and scams perpetrated on renters and have compiled a list of recommendations that if adopted would have a very real effect on the ability of criminals to play the system.
This article forms part of a series promoting these recommendations.
It isn’t always possible to get displaced residential occupiers back into accommodation that they have been illegally evicted from. Sometimes the landlord has quickly re-let to a new renter and the courts will not grant an injunction in such cases[1].
It is not uncommon for landlords to completely trash the accommodation so it is uninhabitable. We have just such a case going on right now.
Forced re-entry, although allowable in law[2] isn’t always feasible, perhaps because of the physical design of the building or because the tenant is fearful for their safety.
Since the advent of the Homelessness Reduction Act ,all homeless applicants including illegally evicted renters, are owed some form of homelessness duty, although not necessarily the full housing duty[3] but some costs will be incurred by the local authority, even if their assistance is minimal.
In the case of temporary accommodation and the full housing duty, which is liable to be the case where an illegal evicted household is in priority need, costs can run into tens of thousands of pounds, all paid for through the public purse, ie you and me.
Council’s can prosecute the perpetrator of illegal eviction under the Protection from Eviction Act, landlords can be landed with a banning order, be declared a not fit and proper person to hold a property licence and both council and tenant can take out claims for 12 month’s worth of back rent using Rent Repayment Orders but recovery of costs of rehousing are not claimed but the costs of rehousing is never pursued.
Our recommendation is to plug that gap and make it routine for local authorities to sue perpetrators of illegal eviction for the full costs of providing any level of homelessness service to the evicted occupiers.
Precedents:
Facilities for works in default, where a council can step in already allow for claims to be made by a local authority for costs of works the landlord has failed to do. In Swindon BC v. Forefront Estates Ltd (2012) the council carried out the necessary works under the Building Act and recovered the cost of preliminary inspections, highways management, scaffolding, consulting fees, roof removal, road closures, officer fees, contractor fees and VAT!
Using this as a precedent the authority could arguably recover all costs, including provisions of temporary accommodation, officer time and costs of discharging the rehousing duty.
It is also our recommendation that such costs should also include officer time in reviews and judicial reviews where the council have accepted a homelessness application as a result of the illegal eviction but later decide that person isn’t owed a duty.
In other words, the perpetrator of an illegal eviction should be made to pay all costs related to any involvement whatsoever by the homelessness unit in dealing with the case, even if the displaced residential occupier is not ultimately rehoused under a Part VII duty.
Existing legislation may need amending to ensure that any local authority charge registered on a property to recoup the debt, would be deemed primary charges, as with many works in default cases, so that sale could be forced and the council get their money before the mortgage company.[4]
Situations arise where the illegal eviction is carried out by the landlord’s agent rather than the landlord himself but as is so often the case, when pursuing action against a limited company, they just dissolve it if ordered to pay anything, so it is important that any damages successfully claimed would have to be registered against the asset itself, which would be the property in question.
In such an event the property owner would have to address this issue with his agent not the local authority, which already happens in cases such as the deposit protection penalty, where a legal case may be successfully brought against an owner who blames their agent for not protecting the deposit, where they would be expected to sue their agent for the penalty levied against them.
All letting agents owe what is called a “Fiduciary duty of care” to their principal, the landlord and illegally evicting a renter is perhaps the biggest breach of that fiduciary duty you can have but untangling responsibilities in such arrangements should not be the concern of the council.
If the asset were not the ultimate and appropriate backstop, then the criminal landlord community would simply devise a business model, where the agent does the illegal eviction and then dissolves the company as a matter of routine, thus evading any possible damages claim by the local authority.
Also worth noting than in many instances a letting agent isn’t even incorporated or may simply operate through online portals, either their own website, often based abroad, or through Gumtree and Spareroom who carry no responsibility for their services being used by criminals (We have another recommendation on duties of care of online platforms)
[1] Love v. Herrity (1991)
[2] S6 Criminal Law Act 1977
[3] S193 Housing Act 1996
[4] Paddington BC v. Finucane (1928), Bristol CC v. Virgin (1928) and Westminster CC v Haymarket Publishing Ltd (1981).
By Ben Reeve Lewis
