In response to a FOI request, the City of Edinburgh Council have confirmed that the nearly 30 year old law criminalising tenant fee charges is not yet included in the list of regulations the council enforces. “The Rent (Scotland) Act 1984 does not currently appear on the Scheme of Delegation of those laws that [Council] Officers can investigate. As such we do not currently enforce this provision.”

In addition, the CEC has confirmed that it has only issued two Rent Penalty Notices against landlords who have broken the law by renting out their properties without registering with the Council. In the same period since the 2004 Anti Social Behaviour Act came into force, Glasgow City Council issued 1,182 penalty notices. This Campaign has discovered many instances of unregistered landlords in Edinburgh, and has encouraged members to report this to the Landlord Registration Unit at the CEC. However, the CEC says that “The main focus with Landlord Registration has been on compliance with the law and this is achieved in most instances with informal action.”

One wonders how high rates of compliance across the sector can be achieved without the deterrent of enforcement action. The Council appear to be focusing on the wrong metric – compliance in the individual case, without considering the deterrent effect to the whole sector which could be achieved with the use of sanctions.

Soft touch

The two RPNs which were served by CEC were in early 2010, so it appears that since this time the Council have taken a “soft-touch” approach to regulating the sector. This is in contrast to Glasgow Council who have enforced the law over a thousand times in the same period. The effect of a Rent Penalty Notice is that the landlord is not entitled to collect rent until fully registered with the council. This is an appropriate economic sanction envisaged by the Scottish Parliament as a deterrent to landlords, but without imposing more serious sanctions such as a criminal record for what could be an oversight. The requirement for landlords to register has been well publicised, and all letting agents should be aware of this law.

The response to these FOI requests show that the CEC has a very poor housing law enforcement record compared with other local authorities in Scotland. Edinburgh Council have refused registration to only 1 landlord, and have removed only 1 landlord from the register – while Glasgow City Council has refused registration to 35 and removed 19 in the same period. Further, one of the factors Edinburgh Council takes into account is whether the tenant has other redress available – such as a small court claim. In the case of illegal premiums, these are recoverable (for tenants who know their rights and have the skill and time to navigate the legal system without the assistance of a solicitor), therefore the Council treats enforcement of these laws as low priority.

Significantly the Council claim that “Premium charges do not form a significant part of our caseload of tenant concerns”. Given the success of the Shelter “reclaim your fees” campaign, where thousands of tenants have successfully recovered illegal premiums, it does appear that victims of these crimes are indeed concerned. For those who do enquire, the Council recommends taking action through the small claims court. Perhaps it would be more effective to refer the matter to Police Scotland, as this Campaign and now Shelter Scotland recommend.

Corruption

The question of regulatory capture is raised again, leading some to speculate about an incestuous relationship between landlords, letting agents, landlord trade associations and the publicly funded bodies who are responsible for regulating the sector. The City of Edinburgh Council was recently the subject of a corruption probe concerning allegations of bribes to council officers in the Property Conservation department. You can read the Police interim report here. Council officials were treated to strippers, sports events and booze by firms bidding for contracts, a police report has revealed. (source)

Reform

However, the public campaign against landlord fee fraud has been successful in securing media coverage and support from Shelter Scotland, various student unions, and tenants rights groups. Showing that we are willing to investigate the reasons why our government organs are appearing not to fairly enforce the law is leading to slow reform. The City of Edinburgh Council are now piloting a new enforcement scheme for landlords who do not register, and are also going to update their Scheme of Delegation to include more of the law. “An Enforcement Policy was adopted on 6 September 2013 which is expected to increase the amount of formal action that is taken.”

Meanwhile, victims of these unlawful charges are urged to contact the Police

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