Written and recorded by Richard Quenby
Hello. Welcome to this Data WEBINAR entitled Housing Planning Act 2016. A Landlord Intendant update. Over the course of the next 20 minutes or so, I'll just talk through a number of recent developments in relation to the implementation of provisions in the 2016 Act which are going to have an impact in relation to banning orders membership off client money protection schemes uncertain other arrangements which contained in the 2016 act, First of foremost in relation to the president discussion is the coming into effect on the 16th on the sixth of April 2018 of what I should referred to in the course of this webinar as the banning order regulations. But in fact they're full title is the Housing and Planning Act 2016 of brackets banning order offenses, close brackets regulations of 2000 and 18. Finding all the regulations. Empower a local housing authority to apply to the first tier tribunal for all order banning a property owner or a property agent from any one of the following activities that is letting a house in England engaging in letting agency work that relates to housing in England engaging in property management work that relates to housing in England, doing to orm or off those things, all being involved in a body corporate that carries out activities from which the person is banned. If that person has been convicted of what the regulations described as a banning order offense, and that person was a residential landlord or property agent at the time of which the offense was committed, persons subject to banning orders are periodically described as rogue landlords or rogue agents. A banning order, when made, must last for a period of at least 12 months. However, it may contain exceptions and carve outs to the ban for some or all of the period to which it relates. So ads, for example, to allow and landlord to continue letting out a property for a period of time while subject to a banning order. If there are existing tenanted, the property and the landlord cannot end those tenants is immediately also is to allow on offending property agent to wind down its current business. Breach of a banning order is punishable by a fine or by a term of imprisonment. Or indeed both, however, a local housing authority can choose to impose a financial penalty up to an amount not more than £30,000 as a law alternative to prosecution in terms of the third bullet point on this slide. In its original consultation in December 2016 the Department for Communities and Local Government as it then WAAS proposed a list of banning order offenses in four rolled cask roots. First, there were relevant housing offenses included offenses under the protection from Eviction Act 1977 the Housing Act 2000 and four and various offenses, relation to gas fire and building safety. The second group comprised immigration offenses, in other words, letting a property to someone who was disqualified from renting it because of their immigration status. Thirdly, there were a group group comprising serious criminal offenses. These included convictions under the Fraud Act 2006 various offenses relating to drugs and specified island sexual offenses committed at residential premises in England by a person who owned or who was involved in the management off those premises, but who was not themselves resident in them. Fourthly, the final category was a hodgepodge of other criminal offenses, including any offense for which a person was sentenced in the Crown Court. Example. Any offence under the Theft Act 1968. However, in light of the responses which were received in relation to that consultation, the Ministry of Housing Communities and local government, which Decell G has since become, has decided to create additional banning order offenses. These include additional harassment fences under the protection from Harassment Act 1977 anti social behaviour offenses under the Anti Social Behavior Crime and Policing Act 2014. Various offenses arising, principally money laundering under the Proceeds of Crime Act 2002 on various additional offenses specifically under the Theft Act 1968 or the Criminal Damage Act of 1970. Well, all the current banning order offenses, old and new are now set out in the schedule to those regulations. There are two sets of regulations which are in effect supplemental to the banning order regulations as now made the first of what I shall turn the retention regulations. They're full title, which is not the pithy ist is the housing open brackets, management orders and financial penalties. Close brackets open brackets, amounts recovered, close brackets, open brackets England close brackets regulations 2018. The retention regulations, which come into force on the sixth of April 2018 ride that a local housing authority in England alone may apply any surplus from any financial penalty recovered by it for a breach of a banning order. So is to meet the costs and expenses incurred in or associated with carrying out any of its enforcement functions in relation to the private rented sector. And you'll recall a Zal deal with later, but also as I mentioned to briefly earlier in this webinar. A local housing authority does have patron foes to impose a financial penalty up to a maximum of £30,000. The sites thinking the tail for local housing authorities is that any surplus by way of financial penalties which are not applied in meeting the costs and expenses of the authorities enforcement functions will have to be paid into the consolidated fund. In other words, the government's General bank account of the bank, the second supplemental set of regulations which accompanied the banning order regulations, are when I have turned the database regulations again. The long title is rather less pithy than that they are the housing and Planning Act 2016 Open brackets database of rogue landlords and property agents. Close Brackets Regulations of 2018. Again, these regulations, like their predecessors, which are for just discussed, come into effect on the sixth of April 2018. Again, they applied to England. Only The regulations require the secretary of state to establish and operate a database off, as the title on the long title of the regulation suggests rogue landlords and property agents. Although it's the function of the secretary of state to establish and maintain of the database, it is for local housing authorities do a supply and maintain the content of that database, they are able to edit it and to update it for the purpose of carrying out their functions. The database will record details of three things. First, banning orders which have been made against a landlord or agent. Second details of any person who has been convicted of a banning order offense and who was a landlord or property agent at the time of that offense. And thirdly, any person who was at least twice in the last 12 months received a financial penalty for a banning order offense The details to be recorded on the database will include the full name and address of the person concerned, the address of the relevant house or housing the national insurance number and date of birth of the individuals. The local housing authority, by whom the entry has been made. The length of time for which the database entry will remain valid on descriptions of each band activity or banning border offense that has taken place turning away from banning orders. On the 19th of March 2018 sections 133 to 135 of the housing and planning at 2060 came into effect in relation to England alone. Those sections are now the Secretary of state to make regulations first, requiring property agents to be members of an approved or designated client protection scheme. Second detailing how such schemes are established, and third, establishing enforcement authorities duties procedures and sank. In November 2070 the Ministry for Housing, Communities and Local Government conducted a consultation on the implementation of mandatory membership of a client money protection scheme for property agents. Approximately 60% of property agents who would be affected by the consultation worry fat on remain already voluntary members off such skips. Indeed, many professional bodies specifically require agents to join a client money scheme as part of their eligibility criteria. The ministry anticipates the membership of a client money protection scheme generally consternation somewhere between 305 £100 a year, depending on the size of the firm. On the amount of the money which it hopes from time to time client account, the new mandatory membership of an approved or designated scheme will again be enforced by local authorities, although the government currently appears undecided. As to whether that should sit, a district council or county council level, the Ministry of Housing and Communities and local government intends to allow local authorities to retain any monies recovered true civil penalties which are imposed for bridge of any of the new scheme or schemes akin to the financial penalties out which a local housing authority may pose in relation to banning orders. The ministry has also suggested that the relevant financial penalty could be as much as £30,000. This, of course, would be in line with civil penalty for committing a banning order offense as much matters currently stand, however, operating without appropriate scheme membership would not itself be a banning order offense. It's the ministry's view that non compliance is more likely to be the result of ignorance or cost concerns rather than criminal in intent. And so, in the ministry's opinion, making a failure to be a member off a approved or designated scheme, something which would be the subject of a banning order is regarded as being too draconian. Lastly, in the context of this webinar, I want to look a recovery of litigation costs. Section 131 of the Housing and Planning Act 2060 inserted a new paragraph Capital A into Schedule 11 of the Common Hold of Leasehold Reform Act 2002. The amendment, which came into effect last year, was designed to correct another normally in relation to the court's power to limit to the amount which a landlord might seek to recover by way of litigation costs in proceedings against residential turns. The backdrop to all of this is Section 20 Captain C. Of the Landlord and Tenant Act 1985 under that section, where a lease allows a landlord to recover the cost of legal proceedings through a service charge. A court or tribunal has the power to limit the amount of the costs which the landlord can recover. However, that power did not extend to litigation costs, which were passed on to residential tenants as or as part off an administration charge. Section 131 of the 2016 act rectified that how were the It did so in a way that it was not retrospective no one's. It does not supply in relation to litigation costs incurred or to be incurred in connection with any proceedings which began before the sixth of April 2070. More recently, however, the Ministry of Housing Communities and local government has published a guidance note on the change which has been affected. This note includes details of which court or tribunal turned should apply to for relief, depending on where the proceedings were hurt. That guidance note is available online that concludes this webinar
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