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The Housing and Planning Act – Commencement Order 5

Two key provisions of the Housing and Planning Act will come into effect in England on 6 April

  1. The widening of Rent Repayment Orders; and
  2. New fixed penalty notices.

Rent Repayment Orders
Many readers will be familiar with Rent Repayment Orders in relation to HMOs and the Housing Act 2004. However, the new regime will widen the grounds on which a Rent Repayment Order can be obtained and will make the whole process easier. The Rent Repayment Order can now be sought for a wide range of offences including:

  1. failure to apply for a HMO;
  2. breach of a licence condition;
  3. breach of the HMO Management Regulations;
  4. breach of an HHSRS enforcement notice; and
  5. using unlawful force to seek an eviction.

Rent Repayment Orders are made by the First-Tier Tribunal on the application of a local authority or tenant against a landlord. A tenant may only apply for the Rent Repayment Order if the offence was committed during the tenant’s tenancy and was committed in the period of 12 months prior to the day on which the application is made. A local authority may only apply for a Rent Repayment Order if the offence relates to housing in their area and they have previously served a notice on the landlord of intended proceedings. The notice of intended proceedings may not be given if more than 12 months have elapsed since the landlord committed the offence.

When making the Rent Repayment Order the Tribunal must be satisfied beyond reasonable doubt that a landlord has committed one of the offences listed above. However, the landlord does not have to have been prosecuted through the courts for a Rent Repayment Order to be made. In other words, a local authority or tenant can seek a Rent Repayment Order against a landlord who they believe has committed an offence even though they have not been prosecuted for it.

Where there has been a prosecution or the local authority has issued a penalty notice for an offence then any discretion of the Tribunal is very limited and they are expected to order the entire sum claimed, potentially all the rent for the last twelve months. Where there has been no prosecution or penalty notice, the Tribunal may exercise their discretion and should order the amount they consider reasonable in the circumstances.

The new provisions also place a positive obligation on a local authority to consider seeking a Rent Repayment Order where they can and they are also able to assist tenants by providing advice or even by conducting proceedings for a Rent Repayment Order.

Fixed Penalty
The new fixed penalty provision allows local authorities to choose to levy a financial penalty of up to £30,000 in respect of any offence under the Housing Act 2004 instead of seeking to prosecute. This applies to the same offences listed above.

The penalties are for each offence committed, so landlords could face multiple fines of up to £30,000 for multiple offences. However, each offence may not see the maximum fine imposed. Local authorities will be given government guidance to assist in setting an appropriate penalty for each offence.

Where financial penalties have been issued, a landlord has 28 days to make representations to the local authority after which the local authority will consider the representation and issue a final decision notice. Following the final decision, the landlord then 28 days to appeal to the First-Tier Tribunal.

Comment
Landlords will need to ensure that they comply with the new provisions of the Housing and Planning Act as failure to do so could be very costly. The process of applying for a Rent Repayment Order is being made easier and they can be sought even where the landlord has not been prosecuted, landlords are therefore strongly advised to review the requirements of the Housing Act 2004 and any local planning restrictions and make sure they are fully in compliance with them.

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