Failure to register

Where a landlord has not registered with the local authority and that authority decides it is appropriate given all the circumstances of the case, it will serve a rent penalty notice. [1]

Service of such a notice means that no rent or other charges are payable under any lease or occupancy agreement applying to the landlord's property. [2] This effectively means that the tenant or occupier is not obliged to pay rent until the notice is lifted or revoked. If the tenant claims housing benefit, this will stop, as the tenant will have no liability to pay rent. [3] Registration officers are strongly advised to notify the housing benefit department if a rent penalty notice is issued in connection with a property where the tenant is in receipt of housing benefit. [4]

Tenants should be aware that it is possible for their landlord to make an appeal against the service of a rent penalty notice. [5] If the landlord decides to lodge such an appeal then s/he should give her/his tenants written notice of this. [6] The tenants should receive the notice at the time the appeal is lodged or as soon as reasonably practicable thereafter. The notice should inform the tenants that the appeal is taking place and that, if it is successful, the tenant will be obliged to pay all sums that would have been payable had the rent penalty notice not been served. [7]

If the landlord does not give the tenant the correct notice that the appeal is taking place then the tenant may not need to pay the sums that would otherwise have been due in the event of a successful appeal. [8]

Tenants should be advised to put their rent money aside if they are served with a rent penalty notice so that they will be able to cope with the eventuality of a successful appeal without falling into arrears.

The local authority may revoke the rent penalty notice if the landlord subsequently makes an application for registration. [9] In these circumstances, her/his tenants will not be liable to pay any rent or other consideration in respect of the period during which the notice was in force. [10]

If a landlord or letting agent lets property without being registered, [11] or even enters into communication about letting property without being registered, [12] s/he will be guilty of an offence. The maximum penalty for acting as an unregistered landlord is £50,000 (from 31 August 2011) [13] the court also has the power to impose upon the landlord a ban on registering as a landlord in any local authority up to a maximum period of five years. [14]

It is worth also noting that 'MacPhail Sheriff Court Practice 3rd edition at paragraph 2.79 states, "When in the course of civil proceedings it appears to the sheriff that a criminal offence may have been committed, he may send the relevant papers to the procurator fiscal in order that the latter may make further inquiries.' [15]