GUIDE TO REGISTRATION AND LICENSING IN WALESV1-JW-20151221
The enforcement mechanisms detailed below are not yet effective to account for the 12 month grace period landlords and agents have to become registered and licensed. The 12 month grace period expires on 23 November 2016, at which time enforcement provisions will come into effect.
The legislation regarding registration and licensing is enforced in a number of ways:
The landlord or agent can be prosecuted. The legislation creates a series of criminal offences:
|Nature of offense||Maximum fine|
|failure by the landlord to register a property||£1,000|
|a landlord carrying out lettings activities without a licence||unlimited|
|a landlord carrying out property management activities without a licence||reasonable excuse available|
|an agent carrying out lettings work without a licence||unlimited|
|an agent carrying out property management work without a licence||reasonable excuse available|
|a landlord appointing an unlicensed agent to carry out lettings work or property management work||£2,500|
|a landlord failing to update registration information||£200|
|a licence holder failing to update licensing information||£2,500|
|failing to give information/produce documents in reply to a notice requiring information/documents to be provided||£2,500|
|intentionally altering, suppressing or destroying a document which a person is required to produce||unlimited|
|supplying false or misleading information to the licensing authority, including information to be supplied by someone else to a licensing authority||unlimited|
Where a level is stated the maximum level of the Fine is:
Fixed Penalty Notices
Except for the offences of altering/suppressing/destroying a document or instructing an unauthorised agent, there is power to impose a fixed penalty instead of prosecuting an offender. However, the authority does not have to offer a fixed penalty.
The fixed penalty is £150 unless the fine for the offence is unlimited, in which case it is £250.
To impose a fixed penalty, a notice is given allowing 21 days for payment. If not accepted a prosecution can ensue. The notice sets out details of the offence and the amount payable.
The proceeds are to be used by the licensing authority for carrying out its duties.
Failure to register a property or not having a licence does not normally excuse the tenant from paying rent.
This is subject to two exceptions if an order is made by the Residential Property Tribunal if:
- The landlord carries out property management activities without being licensed.
- The landlord instructs an unlicensed agent to carry out property management work.
In these situations the landlord can be subject to two further penalties:
- a rent stopping order telling the tenant not to pay the rent and/or
- a rent repayment order requiring a refund of rent
Rent stopping orders
The Residential Property Tribunal can make a rent stopping order. This can be made where the Tribunal is satisfied that, at the time the order is made, either of the following offences are being committed (whether or not there is a prosecution):
- an unlicensed landlord carrying out property management activities or
- the landlord (whether licensed himself or not) instructing an unlicensed agent to carry out property management work
The application prompting the order can be made by the licensing authority or a local authority (with the consent of the licensing authority).
If an order is made:
- Rent must not be paid by the tenant from the date the order takes effect ("the stopping date") until the order is revoked by the Tribunal.
- If rent is still paid it must be refunded to the tenant.
- Rent is treated as if paid while the order is in force (so that it does not have to be paid once the order is lifted in relation to the period while the order lasts).
Other tenancy rights and obligations are unaffected.
Prior to making the application the authority must give notice of the intended proceedings to the landlord and inviting representations. The landlord has 28 days to respond.
A landlord receiving such a notice would be well advised to put matters right.
The stopping date from when rent ceases to be payable cannot be earlier than the date on which the order is made by the Tribunal. The tenant must be informed when an order is made. The order can be revoked by the Tribunal on the application of the authority or the landlord if the Tribunal is satisfied that the offence is no longer being committed. The date when the order ceases can be backdated by the Tribunal.
The tenant must be told of the revocation of the order.
Rent repayment orders
These require landlords to repay housing benefits (including housing costs under universal credit) or rent.
Application can be made to the Residential Property Tribunal for an order.
For an order to be made the landlord who is not licensed must have:
- carried out management activities in relation to the property; or
- appointed (or continues to allow) an unlicensed agent to undertake property management work relating to the property
These are known as 'relevant offences'.
There are two types of application:
An application by the licensing authority/local authority if housing benefits are paid.
In this case to make an order the Tribunal must be satisfied:
- that within the period of 12 months before the service of the preliminary notice referred to under the next bullet point the landlord has committed one or other of the relevant offences (whether prosecuted or convicted of a criminal offence or not)
- a preliminary notice of intended proceedings has been given to the landlord (allowing the landlord 28 days to make representations)
- housing benefit (including housing costs under universal credit) have been paid at any time during which the offence has been committed
The Tribunal must make an order if the landlord has actually been convicted of one or other of the relevant offences, unless there are exceptional circumstances which make it unreasonable to make an order. A fixed penalty notice will not be a conviction for these purposes.
If there has been no conviction the Tribunal can make an order to repay such amount as it considers reasonable. This is subject to the Tribunal considering certain factors, including the extent to which the payments derived from benefit payments.
In any event no order can be made in relation to any time outside the 12 month period prior to the giving of the preliminary notice.
Application by a tenant
A tenant can apply for an order in relation to rent he/she has paid.
To make such an order the Tribunal must be satisfied:
- The landlord has been convicted or one or other of the relevant offences or the Tribunal has made a rent repayment order in relation to housing benefit paid to the tenant.
- The tenant paid rent to the landlord while one or other relevant offences was being committed.
- The application is made within 12 months of the conviction or order (or the later of the two if there has been both).
The Tribunal can order repayment of such amount it considers as reasonable subject considers various matters including the amount paid while the offence is actually committed, the conduct and financial circumstances of the landlord and the tenant’s conduct.
No such order can be made for rent paid outside the period of 12 months prior to the date of the application.
Requests for information/documents
To assist in carrying out their duties or to investigate possible offers the licensing authority can by notice request the production of specific documents or to give information. Such a notice may be given to:
- A licence holder
- An applicant for a licence
- Anyone owning the property or having an interest in it.
- Anyone involved or professed to be involved in letting or the management of a rented property.
- An occupier
Failure to comply is a criminal offence. You can refuse to produce a document or give information on the grounds of legal professional privilege. There is no right of refusal on grounds of self incrimination but the question then arises whether the document or the information provided can be used in evidence in any subsequent proceedings.
Revocation of licences
A further remedy is the possible revocation of the licence.
A licence can be revoked for non compliance with a licence condition and for a number of other reasons.