By far the most common reason for a Rent Repayment Order being sought and awarded is a failure to license a licensable HMO. But that is not the only reason that a Rent Repayment Order might be made. The Housing and Planning Act 2016 provides for a number of different property offences leading to the award of a Rent Repayment Order.
The landlord condition
An interesting point, discussed already on this blog, is the question of against whom an RRO can be made. Some of these offences can be committed by a very wide range of people, including those who are not the landlord of the property, but a Rent Repayment Order can only be made against a landlord (and, while we wait for the final answer from the Supreme Court in Rakusen v. Jepson, the particular landlord who directly rented to the tenants, also known as the “immediate landlord”).
This means that even if someone else (say, a managing agent) were to commit one of these offences, a Rent Repayment Order could not be made against them, though they could be subject to a criminal prosecution in the criminal courts. Landlords should also take care, as they might find themselves being held liable via a Rent Repayment Order for things done by their agents.
What are the offences which lead to a Rent Repayment Order?
s.40 of the Housing and Planning Act 2016 has a helpful table listing all of the offences:
|Act||Section||General description of offence|
|1||Criminal Law Act 1977||section 6(1)||violence for securing entry|
|2||Protection from Eviction Act 1977||section 1(2), (3) or (3A)||eviction or harassment of occupiers|
|3||Housing Act 2004.||section 30(1)||failure to comply with improvement notice|
|4||section 32(1)||failure to comply with prohibition order etc.|
|5||section 72(1)||control or management of unlicensed HMO|
|6||section 95(1)||control or management of unlicensed house|
|7||This Act||section 21||breach of banning order|
As you will see, a total of seven offences can lead to a Rent Repayment Order. The tribunal needs to be satisfied in each case that the offence or offences alleged were committed to the criminal standard, known as “beyond reasonable doubt” or, in more recent times “being sure”. This standard is the same regardless of what offence is alleged, though of course what the tribunal has to be sure of will differ with each offence.
Violence for securing entry
The first item in the table is violence for securing entry. s.6(1) of the Criminal Law Act 1977:
“(1) Subject to the following provisions of this section, any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that—
(a) there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and
(b) the person using or threatening the violence knows that that is the case.”
As you may notice, this offence can be committed by anyone, and need not be in a landlord or tenant context. It requires simply that a person uses or threatens violence to gain entry to a property, and knows that there is a person there who would oppose the entry. The reason Rent Repayment Orders are available with this offence is that the offence of violence for securing entry is sometimes committed by bad landlords or their agents forcing their way into properties to evict tenants. Parliament wanted Rent Repayment Orders to be a way of punishing bad behaviour by rogue landlords, and thought this was an important offence to target.
Eviction or harassment of occupiers
This is defined is s.1 of the Protection from Eviction Act 1977.
“(2) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.
(3) If any person with intent to cause the residential occupier of any premises—
(a) to give up the occupation of the premises or any part thereof; or
(b) to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof; does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence.
(3A) Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if—
(a) he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b) he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.”
These offences are more complex ones, and the full detail cannot be examined in this article. Broadly, however, these offences are committed by performing some sort of illegal eviction, such as by changing the locks on a property to which the tenants still have a right of access, cutting off utilities, or harassing the tenants.
Failure to comply with an improvement notice
This is defined at s.30(1) Housing Act 2004:
“(1) Where an improvement notice has become operative, the person on whom the notice was served commits an offence if he fails to comply with it.”
This offence is relatively straightforward. If a Local Authority serves an improvement notice, and the person who was served it (usually the person to whom it was posted) does not do what it requires by the date required, the offence is committed.
Failure to comply with prohibition order etc.
Again, in the Housing Act 2004, this time at s.32(1)
“(1) A person commits an offence if, knowing that a prohibition order has become operative in relation to any specified premises, he
(a) uses the premises in contravention of the order, or
(b) permits the premises to be so used.”
This is another simple offence dealing with local authority orders, this time a prohibition order which stops certain premises being used as residential accommodation.
Control or management of unlicensed HMO/house
These are the most common offences which lead to Rent Repayment Orders, and have been extensively discussed elsewhere on this blog. They are committed by not securing a property licence when either the Mandatory, Additional, or Selective licensing schemes apply. For more details about these schemes, see our article here.
Breach of banning order
As well as changing the law on Rent Repayment Orders, to make them easier to seek, the Housing and Planning Act 2016 also made a number of changes to the law of landlord and tenant, including by creating “banning orders”, which are made by the First-tier Tribunal and ban people from doing certain things, such as renting out property or acting as a letting agent or property manager. s.21 HaPA 2016 provides:
“(1) A person who breaches a banning order commits an offence.”
A breach of a banning order simply means not following its requirements, for example by renting out a house after being banned from renting out property.
As you can see, a wide range of offences can lead to a Rent Repayment Order being made. Each of these offences has its own complexities and particular rules, which it has not been possible to explore here. Rent Repayment Order law is complicated and still developing.
How can we help?
Expert advice is the best way to find out whether an action you have taken plan to take might amount to an offence, and what the consequences of that might be. Freemans Solicitors are a leading provider of Rent Repayment Order and HMO advice and our experienced team will be happy to help with your enquiry. We can advise on whether a property counts as a converted block of flats HMO and what steps you might be able to take to change this.
Contact Michael Field, Karol Hart or Julian Hunt in our Crime Team on 020 7935 3522 or firstname.lastname@example.org or in an emergency please call our 24/7 number 07973 259382 and let us help. We can advise on investigations, diversion from prosecution, prosecutions of HMO Offences and ancillary matters such a Rent Repayment Orders.
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.