With about 1.8 million families with a genuine need for housing are currently on waiting lists for social housing in England and Wales, some of which are deprived of a home by people subletting their council property for profit.
Government’s Proposed Solution?
The government has proposed a new criminal offence of tenancy fraud to deal with the increasing trend of people earning thousands of pounds subletting council property at market rents, and cheating tenants. The proposal is that the offence will be punishable by fines of up to £50,000 and/or imprisonment of up to two years.
Difficulties are Expected…..
There are doubts, however, about whether the proposals could be effectively enforced if they become law as the success of any changes is likely to hinge on a number of factors – such as how effectively the offence will be policed and whether there will be the resources within social landlords (ie. Housing associations, Local Authorities) to take proper advantage of the changes. Proving subletting can be very difficult, costly and time-consuming. However, part of the proposals are to give local authorities better powers to investigate tenancy fraud, in particular, better access to information from banks and utility companies. This may help, although a lot of tenants who are subletting are clued up enough to keep all of the bills registered in their name, to refuse unannounced visits from the landlord and to make sure they are present at any pre-arranged appointment. This means that Landlords will still face real problems in obtaining sufficient evidence of the subletting – particularly because they will have to prove it to the criminal standard of proof. Additionally for landlords, civil proceedings (rather than criminal) may be a more attractive route than the prospect of criminal proceedings. The main priority for landlords will often be to get the property back so it can be re-let. However, as Checkley points out, criminal proceedings will not achieve that.
In theory, the proposals sound like great news for landlords. In practice, enforcing any such order made by the court can prove impossible if the tenant does not have the ability to pay it. If the changes are introduced, local authorities will be likely to be given the power to prosecute offences themselves and other social landlords could also theoretically bring private prosecutions.
We may be instructed to deal with the proceedings on behalf of clients. The question will be whether to opt for possession proceedings, criminal proceedings, or both. That decision will depend on what the client wants to achieve. Please contact our Property Department if you have any questions.