Banning orders against landlords and letting agents

Banning orders prohibit landlords and agents who has committed relevant offences from letting or managing residential properties. They came into effect on 6 April 2018.[1]

A banning order prohibits a person from:[2]

• renting out residential accommodation

• engaging in letting agency work

• engaging in property management work

A banning order can relate to existing tenancies as well as prohibiting future lettings.[3]

A banning order also prohibits a person from holding a HMO licence or a licence granted under a selective licensing scheme. Local authorities must revoke a licence when it has been granted to a person who subsequently becomes subject a banning order.[4]

A banning order must last for at least 12 months. There is no upper time limit.[5]

A local authority must put anyone subject to a banning order on the national database of rogue landlords and agents.

A banning order can be made against a landlord or agent who has been convicted of a banning order offence.[6]

The banning order offences are set out in regulations.[7] There are 41 separate offences, including:

• unlawful eviction or harassment, under s.1 Protection from Eviction Act 1977

• using or threatening violence for securing entry into premises, under s.6 Criminal Law Act 1977

• failure to comply with an improvement notice, under s.30 Housing Act 2004

• failure to comply with a prohibition order, under s.32 Housing Act 2004

• having control of, or managing, an unlicensed house in multiple occupation, or breaching a condition of a licence, under s.72 Housing Act 2004 (as amended by para 3 Sch. 9 Housing and Planning Act 2016)

• having control of, or managing, an unlicensed property, or breaching a condition of a licence, under s.95 Housing Act 2004 (as amended by para 4 Sch. 9 Housing and Planning Act 2016)

• failure to comply with HMO management regulations, under s.234 Housing Act 2004

• failure to comply with overcrowding notices or fire safety regulations (HMOs only), under s.139 Housing Act 2004 and Art.32 Regulatory Reform (Fire Safety) Order 2005

• breach of gas safety regulations, under s.33 Health and Safety at Work etc Act 1974

• breach of right to rent provisions (criminal prosecutions only), under ss.33A and 33B Immigration Act 2014 (as amended by s.39 Immigration Act 2016)

• requiring a 'relevant person' to make a prohibited payment (criminal offence only), under s.12 Tenant Fees Act 2019

A number of offences set out in the regulations are not directly related to housing, such as fraud, sexual assault, misuse of drugs, theft and stalking. To result in a banning order such an offence must be committed:[8]

• against or in collusion with their tenant or licensee (or member of their household) or at (or in relation to) the property let out, and

• at a time when the offender was a landlord or property agent of that property, and

• by an offender who was sentenced in the Crown Court

An application for a banning order can be made to the First-tier Tribunal (Property Chamber) after a landlord has been convicted of a banning order offence.

Only a local authority can make an application and it is up to the authority to decide whether to apply or not.[9]

Government non-statutory guidance on banning orders sets out factors a local authority might want to consider in deciding whether to apply for a banning order and, if so, the length of the order it will apply for.[10]

The local authority must first serve a notice on the landlord or agent stating:

• why it is applying for a banning order

• the length of order it will apply for

• that they have at least 28 days to make representations in their defence

The notice must be served within six months of the conviction for the banning order offence

After considering any representations the authority must apply to a First-tier Tribunal.

Only the First-tier Tribunal can decide whether to grant an order and if so, how long it should last.

In making its decisions, the Tribunal must consider:[11]

• the seriousness of the banning order offence

• any previous convictions for that offence

• whether the landlord or agent is, or was, on the rogue landlord database

• the effect of the order on the landlord, agent or anyone else who may be affected by the order (for example, a tenant)

Spent convictions

Non-statutory guidance states that spent convictions should not be taken into when determining whether to make a banning order.[12] The Upper Tribunal held that the non-statutory guidance is not binding, and upheld a banning order imposed by the First-tier Tribunal based on spent convictions.[13]

In one case, the First-tier Tribunal held that while it would not take into account a spent conviction, it was entitled to take into account a person's inclusion on the Mayor of London's database of rogue landlords in relation to that conviction.[14]

Exceptions to a banning order

A banning order may specify exceptions, and the legislation sets out two examples:[15]

• where there are existing tenancies and the landlord does not have the power to bring them to an immediate end

• to allow letting agents to wind down current business

The guidance does not add information as to exceptions should be made or how existing tenants are protected.

A landlord or agent can apply to the First-tier Tribunal (Property Chamber) to revoke or vary the banning order.[16]

Where a landlord or agent breaches a banning order:[17]

• they can be prosecuted by the local authority (using its powers under section 222 Local Government Act 1972) or the police. If convicted they can be imprisoned and/or fined

• the local authority can impose a civil penalty of up to £30,000 as an alternative to prosecution

• the local authority can apply for a management order, in respect of a HMO, in order to protect the health, safety or welfare of residents

In addition, a local authority or a tenant (or licensee of the landlord) can apply to a First-tier Tribunal for a rent repayment order where a landlord has breached a banning order.[18]

A tenant who is granted a tenancy by a landlord who is a subject to a banning order has a legal tenancy.[19] To terminate the tenancy a landlord must follow the lawful procedure for ending the type of tenancy granted.