First, an apology for yesterday’s post/email. I paused to eat half way through writing, and on re-starting completely confused my Cs and Ls as to claimant/appellant and defendant/respondent. As a result it appeared that both parties had estranged parents in Egypt, and that the wrong party had appealed. I hope it made a degree of sense regardless. The post has been corrected and now makes actual sense.
Next, just as a comment, I was prompted by a reply on Bluesky to address the inevitable demand from (some) private landlords when faced with the de facto national registration of landlords scheme contained in the Renters’ Rights Bill. ‘Why’, they say, ‘why oh why isn’t there a public register of problem tenants?’ (This was not what the person who replied to me on Bluesky said exactly, but it has been a staple of landlord forums with the introduction of every licensing scheme.)
So, this was my answer on Bluesky (edited to avoid gaps between posts, but otherwise largely as was):
These are two wholly different things. The landlord database will effectively be a register of compliance with statutory duties on landlords (GSC, EICR, Licensing. S.48 address, etc.) It will not be a register of private law duties. Eg whether the landlord has had disrepair claims or civil harassment claims against them. Those are private law civil and contractual obligations between the parties.
The landlord database might result in a sudden increase in the amount of tax paid by landlords, and, I suspect, a sudden jump in conversion of residential mortgages to BTL mortgages (at a higher rate), but that is not its purpose. It would simply be a side effect of visibility.
But your proposed register of ‘badly behaved tenants’ could only involve the private, civil law obligations of one party to another. (rent arrears, property damage, ASB/nuisance). As such it already exists – the register of County Court Judgments. Because that is where a breach of civil and contractual obligations is adjudicated, the county court. Anything else would just be a recipe for defamation, character assassination & the whingeing of landlords – a legal minefield.
Because where else would the supposed information come from except landlords, who i) are not necessarily sane or ii) cognisant of their obligations (s.21 for complaining too much about a broken shower, or for getting pregnant when ‘she’d said she wouldn’t’, anyone? Seen both – expressly stated).
The tenants could of course obtain the details of who placed the entry, and sue for defamation (the serious impact on them would be obvious). This, I’m sure you would agree, is not, on the whole, a good idea… Basically, get a good referencing agency, then sue them if they cock up.
I’d stand by this. So, views? Counter arguments? Though I warn you now that anything along the lines of ‘it isn’t fair’ won’t be entertained and will probably be deleted.
The register of county court judgments will become a living nightmare for delinquent tenants. No more hiding behind the “no fault” delusion, the true reason for eviction will be there for all to see.
Perhaps, we will see. But that is the proper form for a ‘register of badly behaved tenants’.
Will the landlord register be for all landlords? I am a shared owner and my 1-bed flat is unmortgageable because of the building safety crisis. Like other shared owners who sublet I am not allowed to make a profit.
Yes, all landlords.
The infinite, and often extremely nuanced, reasons why tenants may end up being evicted from their homes are not reflected on the CCJ register, and the register should not, in my opinion, be treated as a list of the “true reasons” why possession orders have been made against tenants.
The register doesn’t record possession orders. Just where there is a judgment debt. Certainly there may be many reasons for that, so would be a pointer for inquiry, but it is an indicator that something has gone wrong in the related tenancy.
A debt order arising from a possession claim isn’t automatically entered onto the register of CCJs unless enforcement action is taken. I’m not sure if this is a policy or even what’s meant to happen, but it seems to be what happens in practice.
It seems to be the rule/policy, for defended claims. Default judgments are entered automatically. I really don’t know why the difference.
With s 21 being abolished LL need clear information about prospective tenants; both behaviour and financial info.
Many LL are so glad get to get possession of their property back they may not pursue a past T for rent arrears / damage. Some Ts may not have resources and even if they do enforcement of judgments can be costly and time consuming. For this reason a lot of tenant behaviour /damage will not be recorded but nevertheless it would be important info for a LL to know. The Govt could develop policy in this area so that this type of information is recorded – eg perhaps the LL database could have a requirement to include relevant end of tenancy information.
There should also be available information on any vexatious behaviour of T’s during the tenancy; eg referring an LL to a local authority which is later found to be without merit. And a record of T’s refusal to give access to the Property without good cause to enable LL repair / inspect
/ show the property would be helpful.
That said, a free publicly available searchable register of possession orders would be a start.
But other information such as history of past LL claims to deposit protection schemes for T damage to property at end of tenancy would help. And where applicable the amount of shortfall between deposit and damage caused to property would be useful. There could be a role for TDS adjudicators here as they are independent and impartial.
As the RRB tilts possession grounds in favour of Ts, (longer notice periods plus higher amounts of arrears), possession orders will only capture highly egregious behaviour so there is still a need to have access to relevant information which falls below the legal threshold for possession.
For example, some credit reference agencies offer T’s the ability on a voluntary basis to record rent payments to build up their credit history. If this was made compulsory and T’s were required to produce their record to a prospective LL that would help LL’s inform their assessment of T’s past compliance with rent payment obligations. After all banks have access to this type of information before making a lending decision so why not LL’s when assessing a prospective T’s ability to pay rent.
If this type of information was routinely available it would likely improve T’s compliance with their duties and contractual obligations.
Thank you for not actually reading why that information cannot be publicly recorded unless the landlord has a judgment. Anything based solely on a landlord’s say so is unreliable and potentially defamatory, and if in a publicly accessible database the level of potential harm is immense.
As for your suggestions – a referral of the landlord to the local authority that is ‘found to be without merit’? What do you mean? There are a host of reasons why a local authority may not act on a referral. Do you mean local authorities would have to produce public decisions on every referral, and certify whether there were with or without merit, or mark them as vexatious?
Possession orders under the RRB will not only capture ‘highly egregious behaviour’. There are grounds that involve no tenant fault whatsoever.
The credit reference/rent thing has been rumbling about for some time. I don’t have any particular objection to that.
After all that, there is the further point as to why on earth the tax payer should subsidise private landlords in their assessment of their own private business risk.
Thanks for the post. It will be interesting to see the extent of the landlord register in terms of what evidence will be required to show compliance with every (landlord) rule in the book.
Rest assured, I read and understood your article. In recognition of what you said about the need for public bodies /courts to adjudicate private civil law matters, I prefaced what I said by saying at the outset it would be open for the Government to develop new policy (eg enacting new regulations) so that certain types of information relating to a Tenant could by law be recorded and made available to a Landlord.
Your article highlights that there is information asymmetry as between Landlords and their prospective Tenants. A lot of information will be made available to Tenants about Landlords and the property they wish to rent (which I have no issue with). But there is a paucity of information as regards the information available to a Landlord about a prospective Tenant’s behaviour during a previous tenancy. If a Landlord only has access to civil judgments that is, in my view, insufficient. Landlords can and do use tenant reference agents to check basic details but these may not be sufficiently robust to identify poor behaviour by a Tenant during a previous tenancy.
As your post asks for views and comments, I indicated the types of information that might be useful for a Landlord to know in advance of granting a tenancy. I suggested possibilities regarding how this might be accomplished for some of the information – in reality a start for ten.
Regarding referrals to local authorities, it would be open to the Govt potentially to specify the circumstances in which a Tenant’s behaviour is to be regarded as vexatious and therefore worthy of recording (and available for review by a Landlord). I am sure any process for taking such a decision would allow for a Tenant to make representations before a formal decision is made.
In the same way as there is a database of ‘rogue landlords’ there should, in my view, also be one for ‘rogue tenants’. Obviously legislation would be needed but it could be a possibility.
The RRB tilts the balance entirely in favour of Tenants. This means civil judgments made after the RRB is enacted will only record behaviour related to standards of behaviour that meet a higher threshold of poor behaviour, eg Ground 8 will require 3 months’ arrears and a notice period of 4 weeks vs the current 2 months arrears and 2 weeks notice period.
I agree, for the reasons you point out, that it would not be appropriate for a Landlord’s say on something to be the final word.
I don’t think I mentioned anything about tax payers funding the decisions of private landlords. Some of my suggestions related to:
– inclusion of information about Tenancies to be recorded on the PRS Landlord Database (which is funded by Landlords);
– making available records of orders for possession (which in my view, like CCJs, ought to be a matter of public record);
– possibly increasing powers of deposit scheme adjudicators regarding deposit deductions / deficits (schemes already exist and are backed by the Government); and
– making mandatory use of rental reporting to credit reference agencies (which are private organisations and don’t cost the tax payer).
No, you completely missed the point. This is not about legislation enabling information to be available – on your own statement, landlords don’t pursue proceedings. That is then their problem.
A record of possession orders will be of no use (or will be abused) for the reasons already given. A record which included the grounds for possession might be OK, not least because it would help stop landlords abusing the ‘intend to sell/family member needs to occupy’ grounds of possession. I have argued use of those grounds needs to be a matter of public record.
There is no earthly way that a government, of any stripe, is going to create a public database of landlord’s personal whinges, for the reasons already given. So, unless it is a possession order or CCJ, I can’t see what else you think should be on record.
What increase in powers of deposit adjudicators? I am at a loss as to what you might mean? Their ‘powers’ are purely contractual in any event, not statutory, but given that they can already deal with any alleged breach that could give rise to a retention of deposit, I don’t understand what you mean.
As for the ‘information imbalance’ that has been massively and wholly the other way, in favour of landlords, for decades, still is and will be until the relevant parts of the RRB are in force. But the database is not primarily to provide information to tenants (although it will), it is to ensure statutory compliance.
I am getting tired of having to make the same point over again. The database will not record breaches of the civil law obligations of the landlord and the tenant. It will not record, for example, successful housing conditions claims, or harassment claims by the tenant against the landlord, in the same way it won’t record rent arrears or alleged ASb possseions claims against the tenant.If you want one recorded, then so should be the other. But this is practical and costly admin nightmare.
Why on earth should the taxpayer subsidise the private business risk assessment of a landlord through such a database? We don’t with any other private business or investment situation, apart from it complying with statutory regulation. You can make a foolish and risky investment with a non-FCA regulated company if you want. The due diligence is up to you. This is just such special pleading by landlords, that they should somehow and uniquely have taxpayer funded protection from the risks of their business.
Thanks. And noted that you do not think some of my suggestions would work. I am interested to know what ideas you think might assist Landlords in obtaining information about poor tenant behaviour during a tenancy?
Many landlords are reliant on rental income to support them in retirement. Some are accidental landlords. Some have mortgages to pay and are reliant on rental income. As such they are considered to be consumers. I don’t see what the issue is in affording this type of landlord some level of protection. Perhaps a regulator for the PRS would assist?
Regarding due diligence, I don’t see why there can be any objection to a government supporting consumer landlords to make decisions which are less risky and thus shield them from the potential for significant losses posed by a riskier decision. As you say, the government already does this for consumers when purchasing regulated financial products and services.
A searchable record of possession orders could assist a Landlord as it would highlight potential past wrongdoing on the side of the person(s) subject to the Order. I agree that a record of the ground for possession would be helpful too.
I said Landlords may not pursue a former Tenant for damage or rent arrears for a variety of reasons, e.g. Tenant has no resources, Tenant absconds, enforcement difficulties etc. But I did not say that Landlords don’t pursue Tenants in civil proceedings. The point is, that where a Tenant has caused significant damage and a claim is not pursued there is no public record of that behaviour. This exposes a new Landlord to risk if taking on that Tenant as on paper appears they would appear to be well behaved.
With statute limiting deposits to 5 weeks rent, the Landlord is particularly exposed where the Tenant does not pay the last month’s rent and any damage caused to the property exceeds whatever remains of the deposit. This is also compounded by the proposal in the RRB to disallow rent in advance.
My suggestion was that in circumstances where an adjudicator makes a deduction from the deposit, they would be required to maintain records of: (1) the deposit, (2) the monetary amount of deduction made and (3) the financial amount of the damage caused (including where it exceeds the amount of the deposit held). This information could be provided to a new Landlord considering granting a tenancy to the individual in respect of whom the past adjudication was made. The powers to record and disclose this information would be new and could be set by regulation.
The RRB will tilt the balance of power in favour of tenants. We may agree to disagree on that. In any event, the issue remains that at present there does not seem to be a proper system for recording tenant’s non-compliance with their duties and obligations. The government could make certain aspects of compliance with tenancy agreements a statutory requirement which could be recorded on a database for disclosure to a Landlord.
I can think of a number of policy reasons why a government might support a database. It could support confidence in the PRS as Landlords would have access to reliable information about past bad behaviour. This might increase investment in the sector. The database may encourage good behaviour and reduce disputes. A reduction in disputes would relieve pressure and reduce burdens on courts.