Tenant Fees Bill (HL Bill 129)

Tenant Fees BillPage 10

(b) a financial penalty imposed under that section by the enforcement
authority is withdrawn,

(c) a financial penalty imposed under that section by the enforcement
authority is quashed on appeal, or

(d)
5the enforcement authority brings proceedings for an offence under
section 12 and the defendant in the proceedings is convicted of the
offence.

(7) Subsection (8) applies where—

(a) an enforcement authority has imposed a financial penalty under
10section 8(3),

(b) the breach to which the penalty relates occurred in the area of a local
housing authority which is not the enforcement authority which
imposed the penalty, and

(c) the final notice imposing the penalty has not been withdrawn.

(8) 15The enforcement authority must notify the local housing authority as soon as
reasonably practicable if—

(a) the period for bringing an appeal against the penalty under paragraph
6 of Schedule 3 expires without an appeal being brought,

(b) an appeal against the penalty is withdrawn or abandoned, or

(c) 20the final notice imposing the penalty is confirmed or varied on appeal.

(9) Subsection (10) applies where—

(a) an enforcement authority has brought proceedings against a person for
an offence under section 12, and

(b) the conduct to which the offence relates occurred in the area of a local
25housing authority which is not the enforcement authority which has
brought the proceedings.

(10) The enforcement authority must notify the local housing authority as soon as
reasonably practicable if the person is convicted of the offence.

(11) In this section—

(a) 30“local housing authority” has the meaning given by section 1 of the
Housing Act 1985, and

(b) a reference to an enforcement authority taking enforcement action is a
reference to that authority—

(i) imposing a financial penalty under section 8, or

(ii) 35bringing proceedings against a person for an offence under
section 12.

15 Recovery by relevant person of amount paid

(1) Subsection (3) applies where—

(a) a landlord or a letting agent breaches section 1 or 2, as a result of which
40the landlord or letting agent, or a third party, receives a prohibited
payment from a relevant person, and

(b) all or part of the prohibited payment has not been repaid to the relevant
person.

(2) Subsection (3) also applies where—

(a) 45a landlord or letting agent breaches Schedule 2 in relation to a holding
deposit paid by a relevant person, and

Tenant Fees BillPage 11

(b) all or part of the holding deposit has not been repaid to the relevant
person.

(3) The relevant person may make an application to the First-tier Tribunal for the
recovery from the landlord or letting agent of—

(a) 5if none of the prohibited payment or holding deposit has been repaid
to the relevant person, the amount of the prohibited payment or
holding deposit;

(b) if part of the prohibited payment or holding deposit has been repaid to
the relevant person, the remaining part of the prohibited payment or
10holding deposit.

(4) Subsection (5) applies where—

(a) a landlord or letting agent breaches section 1 or 2, as a result of which
a relevant person enters into a contract with a third party, and

(b) the relevant person has made a payment or payments under the
15contract.

(5) The relevant person may make an application to the First-tier Tribunal for the
recovery from the landlord or letting agent of the amount of the payment or (as
the case may be) the aggregate amount of the payments that the relevant
person has made.

(6) 20Subsection (3) does not apply in relation to a prohibited payment or holding
deposit if or to the extent that, with the consent of the relevant person—

(a) the prohibited payment or holding deposit, or the remaining part of it,
has been applied towards a payment of rent under the tenancy, or

(b) the prohibited payment or holding deposit, or the remaining part of it,
25has been applied towards the tenancy deposit in respect of the tenancy.

(7) Subsection (3) or (5) does not apply where an enforcement authority has
commenced criminal proceedings against the landlord or the letting agent for
the same breach.

(8) Subsection (3) or (5) does not apply where an enforcement authority has
30required the landlord or letting agent to pay to the relevant person all or part
of the amount or (as the case may be) the aggregate amount referred to in that
subsection.

(9) On an application under subsection (3) or (5), the First-tier Tribunal may order
the landlord or the letting agent to pay all or any part of the amount or (as the
35case may be) the aggregate amount referred to in that subsection to the relevant
person within the period specified in the order.

(10) A period specified under subsection (9) must be a period of at least 7 days but
not more than 14 days beginning with the day after that on which the order is
made.

(11) 40An order of the First-tier Tribunal under this section is enforceable by order of
the county court as if the amount payable under the order were payable under
an order of that court.

16 Assistance to recover amount paid

(1) An enforcement authority may help a relevant person—

(a) 45to make an application under section 15 (recovery by relevant person of
amount paid), or

Tenant Fees BillPage 12

(b) to recover all or part of an amount which the First-tier Tribunal orders
to be paid to the relevant person under that section.

(2) An enforcement authority may, for example, help a relevant person by
conducting proceedings or by giving advice to the relevant person.

17 5Restriction on terminating tenancy

(1) This section applies if—

(a) a landlord breaches section 1(1) by requiring a relevant person to make
a prohibited payment in connection with an assured shorthold tenancy,
and

(b) 10the relevant person makes a prohibited payment to the landlord as a
result of the requirement being made.

(2) This section also applies if—

(a) a landlord breaches Schedule 2 in relation to a holding deposit paid by
a relevant person, and

(b) 15the deposit relates to an assured shorthold tenancy.

(3) No section 21 notice may be given in relation to the tenancy so long as all or
part of the prohibited payment or holding deposit has not been repaid to the
relevant person.

(4) Subsection (3) does not apply where none of the prohibited payment or
20holding deposit has been repaid to the relevant person if, with the consent of
the relevant person—

(a) the payment or deposit has been applied towards a payment of rent
under the tenancy,

(b) the payment or deposit has been applied towards the tenancy deposit
25in respect of the tenancy, or

(c) some of the payment or deposit has been applied as mentioned in
paragraph (a) and the rest has been applied as mentioned in paragraph
(b).

(5) Subsection (3) does not apply where part of the prohibited payment or holding
30deposit has been repaid to the relevant person if, with the consent of the
relevant person—

(a) the remaining part has been applied towards a payment of rent under
the tenancy,

(b) the remaining part has been applied towards the tenancy deposit in
35respect of the tenancy, or

(c) some of the remaining part has been applied as mentioned in
paragraph (a) and the rest has been applied as mentioned in paragraph
(b).

(6) In this section “section 21 notice” means a notice under section 21(1)(b) or (4)(a)
40of the Housing Act 1988 (recovery of possession on expiry or termination of
assured shorthold tenancy).

Tenant Fees BillPage 13

Amendments to the Consumer Rights Act 2015

18 Duty to publicise fees on third party websites

(1) Section 83 of the Consumer Rights Act 2015 (duty of letting agents to publicise
fees etc) is amended in accordance with subsections (2) to (6).

(2) 5After subsection (3) insert—

(3A) Subsection (3C) applies to an agent who—

(a) is carrying on letting agency work in relation to a dwelling-
house in England, and

(b) advertises the dwelling-house on a third party website as a
10dwelling-house which a landlord is seeking to let on a tenancy.

(3B) Subsection (3C) also applies to an agent who, on a third party website,
advertises letting agency work carried on by the agent in relation to
dwelling houses in England.

(3C) The agent must ensure that—

(a) 15a list of the agent’s relevant fees is published on the third party
website, or

(b) there is a link on that website to a part of the agent’s website
where a list of those fees is published.”

(3) In subsection (4), in the opening words, for “or (3)” substitute “, (3) or (3C)”.

(4) 20In subsection (6), for “or (3)” substitute “, (3) or (3C)”.

(5) In subsection (7), for “or (3)” substitute “, (3) or (3C)”.

(6) In subsection (9) at the end insert—

  • ““third party website”, in relation to a letting agent, means a
    website other than the agent’s website.”

(7) 25In section 87 of that Act (enforcement of duty of letting agents to publicise fees
etc), after subsection (2) insert—

(2A) If a letting agent breaches the duty in section 83(3C) (duty to publish list
of fees etc on third party website), that breach is taken to have occurred
in each area of a local weights and measures authority in England in
30which a dwelling-house to which the fees relate is located.”

19 Information about membership of client money protection scheme

In section 83 of the Consumer Rights Act 2015, in subsection (6) (statement of
whether agent is member of client money protection scheme)—

(a) for the words from “holds money” to “as part of” substitute “is required
35to be a member of a client money protection scheme for the purposes
of”, and

(b) for the words from “of whether” to the end substitute that—

(a) indicates that the agent is a member of a client money
protection scheme, and

(b) 40gives the name of the scheme.”

Tenant Fees BillPage 14

20 Penalties for continuing breach of duty

(1) Section 87 of the Consumer Rights Act 2015 (enforcement of duty of letting
agents to publicise fees etc) is amended as follows.

(2) In subsection (6), at the end insert “, subject to subsection (6A)”.

(3) 5After subsection (6) insert—

(6A) More than one penalty may be imposed on the same letting agent by a
local weights and measures authority in England in respect of a breach
which occurs in England where—

(a) the breach continues after the end of 28 days beginning with the
10day after that on which the final notice in respect of the previous
penalty for the breach was served, unless the letting agent
appeals against that notice within that period, or

(b) if the letting agent appeals against that notice within that
period, the breach continues after the end of 28 days beginning
15with the day after that on which the appeal is finally
determined, withdrawn or abandoned.

(6B) Subsection (6A) does not enable a penalty to be imposed after the final
notice in respect of the previous penalty has been withdrawn or
quashed on appeal.

(6C) 20In subsections (6A) and (6B) “final notice” has the meaning given by
paragraph 3(2) of Schedule 9.”

Amendments to the Housing and Planning Act 2016

21 Enforcement of client money protection schemes for property agents

(1) Section 135 of the Housing and Planning Act 2016 (enforcement of client
25money protection scheme regulations) is amended as follows.

(2) In subsection (4)(e), after “for the purposes of any of its functions” insert
“(whether or not the function is expressed to be a function of a local weights
and measures authority)”.

(3) For subsection (5) substitute—

(5) 30In this section “local authority in England” means a local weights and
measures authority in England.”

Lead enforcement authority

22 Lead enforcement authority

(1) In this Act “lead enforcement authority” means—

(a) 35the Secretary of State, or

(b) a person whom the Secretary of State has arranged to be the lead
enforcement authority in accordance with subsection (2).

(2) The Secretary of State may make arrangements for a local weights and
measures authority in England to be the lead enforcement authority for the

Tenant Fees BillPage 15

purposes of the relevant letting agency legislation instead of the Secretary of
State.

(3) The arrangements—

(a) may include provision for payments by the Secretary of State;

(b) 5may include provision about bringing the arrangements to an end.

(4) The Secretary of State may by regulations made by statutory instrument make
transitional or saving provision which applies when there is a change in the
lead enforcement authority.

(5) The regulations may relate to a specific change in the lead enforcement
10authority or to changes that might arise from time to time.

(6) In this Act “the relevant letting agency legislation” means—

(a) this Act,

(b) Chapter 3 of Part 3 of the Consumer Rights Act 2015 as it applies in
relation to dwelling-houses in England,

(c) 15an order under section 83(1) or 84(1) of the Enterprise and Regulatory
Reform Act 2013, and

(d) regulations under section 133, 134 or 135 of the Housing and Planning
Act 2016.

23 General duties of the lead enforcement authority

(1) 20It is the duty of the lead enforcement authority to oversee the operation of the
relevant letting agency legislation.

(2) It is the duty of the lead enforcement authority to issue guidance to
enforcement authorities about the exercise of their functions under this Act.

(3) It is the duty of the lead enforcement authority to provide information and
25advice to relevant authorities in England and to the public in England about
the operation of the relevant letting agency legislation, in such form and
manner as it considers appropriate.

(4) The lead enforcement authority may, amongst other things, disclose
information to a relevant authority for the purposes of enabling that authority
30to determine whether there has been a breach of, or an offence under, the
relevant letting agency legislation.

(5) Subsections (6) to (8) apply if the lead enforcement authority is not the
Secretary of State.

(6) The Secretary of State may direct the lead enforcement authority to issue
35guidance about the operation of the relevant letting agency legislation to
relevant authorities in England and may give directions as to the content of
that guidance.

(7) A direction may relate to all or particular kinds of relevant authorities and may
make different provision for different kinds of authority.

(8) 40It is the duty of the lead enforcement authority to keep under review and from
time to time advise the Secretary of State about—

(a) social and commercial developments in England and elsewhere
relating to tenancies, the carrying on of letting agency work and related
activities, and

Tenant Fees BillPage 16

(b) the operation of the relevant letting agency legislation.

(9) In this section and section 24 “relevant authority” means—

(a) in relation to this Act, an enforcement authority;

(b) in relation to Chapter 3 of Part 3 of the Consumer Rights Act 2015, a
5local weights and measures authority in England;

(c) in relation to an order under section 83(1) or 84(1) of the Enterprise and
Regulatory Reform Act 2013, a person on whom functions in relation to
enforcement of the order are conferred;

(d) in relation to regulations under section 133, 134 or 135 of the Housing
10and Planning Act 2016, a local authority in England (as defined in
section 135 of that Act).

24 Enforcement by the lead enforcement authority

(1) The lead enforcement authority may take steps to enforce the relevant letting
agency legislation where it considers it is necessary or expedient to do so.

(2) 15The lead enforcement authority may, for that purpose, exercise any powers
that a relevant authority may exercise for the purpose of the enforcement of the
legislation in relation to which it is such an authority.

(3) Where the lead enforcement authority proposes to take enforcement action in
respect of a breach of the relevant letting agency legislation, it must notify the
20relevant authority in relation to the legislation in whose area the breach has
occurred that it proposes to do so.

(4) If the lead enforcement authority notifies a relevant authority under subsection
(3) but does not take the action referred to in that subsection, the lead
enforcement authority must notify the relevant authority of that fact.

(5) 25Where a relevant authority receives a notification under subsection (3), the
authority is relieved of any duty to take enforcement action in relation to the
breach unless the authority receives a notification under subsection (4).

(6) But the lead enforcement authority may require the relevant authority to assist
the lead enforcement authority in taking the enforcement action.

(7) 30Every relevant authority in England must report to the lead enforcement
authority, whenever the lead enforcement authority requires and in such form
and with such particulars as it requires, on the exercise of that relevant
authority’s functions under the relevant letting agency legislation.

(8) Section 14(7) to (10) (duty to notify the local housing authority) applies to the
35lead enforcement authority as it applies to a local weights and measures
authority.

(9) For the investigatory powers available to the lead enforcement authority for
the purposes of enforcing the relevant letting agency legislation, see Schedule
5 to the Consumer Rights Act 2015.

(10) 40In paragraph 10 of Schedule 5 to the Consumer Rights Act 2015 (duties and
powers to which Schedule 5 applies), at the appropriate place insert “section 24
of the Tenant Fees Act 2018.”

Tenant Fees BillPage 17

General interpretation

25 Meaning of “letting agent” and related expressions

(1) In this Act “letting agent” means a person who engages in letting agency work
(whether or not that person engages in other work).

(2) 5In this Act “letting agency work” means things done by a person in the course
of a business in response to instructions received from—

(a) a landlord who is seeking to find another person to whom to let
housing, or

(b) a tenant who is seeking to find housing to rent.

(3) 10A person is not a letting agent for the purposes of this Act if the person engages
in letting agency work in the course of that person’s employment under a
contract of employment.

(4) A person who is an authorised person in relation to a reserved legal activity is
not a letting agent when carrying on legal activity in response to instructions
15from a landlord or tenant who does not instruct that person to do other things
within subsection (2).

(5) In subsection (4)

(a) “legal activity” and “reserved legal activity” have the meanings given
by section 12 of the Legal Services Act 2007;

(b) 20“authorised person” has the meaning given by section 18 of that Act.

26 Interpretation

(1) In this Act—

  • “assured shorthold tenancy” has the same meaning as in Part 1 of the
    Housing Act 1988;

  • 25“communication service” has the meaning given by paragraph 10(3) of
    Schedule 1;

  • “enforcement authority” has the meaning given by section 7(5);

  • “holding deposit” has the meaning given by paragraph 3(2) of Schedule 1;

  • “housing” means a building, or part of a building, occupied or intended
    30to be occupied as a dwelling;

  • “landlord” includes—

    (a)

    a person who proposes to be a landlord under a tenancy,

    (b)

    a person who has ceased to be a landlord under a tenancy,

    (c)

    a licensor under a licence to occupy housing,

    (d)

    35a person who proposes to be a licensor under a licence to
    occupy housing, and

    (e)

    a person who has ceased to be a licensor under a licence to
    occupy housing;

  • “lead enforcement authority” has the meaning given by section 22(1);

  • 40“licence to occupy housing”—

    (a)

    includes a licence which is granted to a licensee by a licensor
    who resides in the housing;

    (b)

    does not include a licence to occupy social housing;

    Tenant Fees BillPage 18

    (c)

    does not include a licence to occupy housing the purpose of
    which is to confer on the tenant the right to occupy housing for
    a holiday;

  • “long lease” means a lease which—

    (a)

    5is a long lease for the purposes of Chapter 1 of Part 1 of the
    Leasehold Reform, Housing and Urban Development Act 1993,
    or

    (b)

    in the case of a shared ownership lease (within the meaning
    given by section 7(7) of that Act), would be a lease within
    10paragraph (a) if the tenant’s total share (within the meaning
    given by that section) were 100%;

  • “prohibited payment” has the meaning given by section 3 and Schedule 1;

  • “the relevant letting agency legislation” has the meaning given by section
    22(6);

  • 15“relevant person” has the meaning given by section 1(9) (and see
    subsection (2) of this section);

  • “social housing” has the same meaning as in Part 2 of the Housing and
    Regeneration Act 2008;

  • “tenancy” means—

    (a)

    20an assured shorthold tenancy other than—

    (i)

    a tenancy of social housing, or

    (ii)

    a tenancy which is a long lease,

    (b)

    a tenancy which meets the conditions set out in paragraph 8
    (lettings to students) of Schedule 1 to the Housing Act 1988, or

    (c)

    25a licence to occupy housing;

  • “tenancy agreement” means an agreement granting a tenancy of housing
    to a tenant;

  • “tenancy deposit” has the meaning given by paragraph 2(2) of Schedule 1;

  • “tenant” includes—

    (a)

    30a person who proposes to be a tenant under a tenancy,

    (b)

    a person who has ceased to be a tenant under a tenancy,

    (c)

    a licensee under a licence to occupy housing,

    (d)

    a person who proposes to be a licensee under a licence to
    occupy housing, and

    (e)

    35a person who has ceased to be a licensee under a licence to
    occupy housing;

  • “utility” has the meaning given by paragraph 8(3) of Schedule 1.

(2) In the following provisions references to a relevant person include a person
who has ceased to act on behalf of a tenant—

(a) 40section 4(4) (repayment of loan);

(b) section 10 (recovery by enforcement authority of amount paid);

(c) sections 15 (recovery by relevant person of amount paid) to 17
(restriction on terminating tenancy);

(d) Schedule 3 (financial penalties etc).

Tenant Fees BillPage 19

Final provisions

27 Consequential amendments

(1) In section 87 (enforcement of duty of letting agents to publicise fees etc) of the
Consumer Rights Act 2015—

(a) 5after subsection (1) insert—

(1A) The duty in subsection (1) is subject to section 24 (enforcement
by the lead enforcement authority) of the Tenant Fees Act
2018.”;

(b) in subsection (9), after “guidance issued by the Secretary of State” insert
10“or the lead enforcement authority (if not the Secretary of State)”;

(c) after subsection (12) insert—

(13) For provisions about enforcement of this Chapter by the lead
enforcement authority, see sections 22 to 24 of the Tenant Fees
Act 2018.

(14) 15In this section “lead enforcement authority” has the meaning
given by section 22(1) of the Tenant Fees Act 2018.”

(2) In section 85 (enforcement of requirements relating to redress orders) of the
Enterprise and Regulatory Reform Act 2013—

(a) after subsection (4) insert—

(4A) 20A person on whom functions are conferred under subsection (4)
must have regard to any guidance issued by the Secretary of
State or the lead enforcement authority (if not the Secretary of
State) relating to the enforcement of an order under section
83(1) or 84(1).”;

(b) 25after subsection (5) insert—

(6) For provisions about enforcement of an order under section
83(1) or 84(1) by the lead enforcement authority, see sections 22
to 24 of the Tenant Fees Act 2018.

(7) In this section “lead enforcement authority” has the meaning
30given by section 22(1) of the Tenant Fees Act 2018.”

(3) In article 7 of the Redress Schemes for Lettings Agency Work and Property
Management Work (Requirement to Belong to a Scheme etc) (England) Order
2014 (S.I. 2014/2359), after paragraph (2) insert—

(3) The duty referred to in paragraph (1) is subject to section 24
35(enforcement by the lead enforcement authority) of the Tenant Fees Act
2018.”

(4) The amendment made by subsection (3) is without prejudice to any power to
make an order or regulations amending or revoking the order mentioned in
that subsection.

(5) 40In section 135 (enforcement of client money protection scheme regulations) of
the Housing and Planning Act 2016—

(a) in subsection (3), after “the Secretary of State” insert “or the lead
enforcement authority (if not the Secretary of State)”;