Local authorities have a duty to prepare and maintain a register of landlords. Only those landlords that that have been assessed by the local authority as being fit and proper should be entered on the register.
Applications should be made by the relevant person via the online Landlord Registration System wherever possible. This should ensure that landlords submit all the required information and pay the relevant fee, so that a valid application is submitted. The online process also provides flexibility with the site being available out-with traditional office hours. Applications can be made via smartphone and tablet. The system also captures email addresses that can be used for future correspondence with the applicant. Applicants who apply online can also benefit from a discounted application fee.
The online application process is especially useful for people that need to register in multiple local authority areas and/or include multiple rented properties. This minimises the amount of work that local authorities would otherwise have to do to input a paper application, calculate any discounts and process the relevant fee.
There may be justifiable reasons why an applicant is not able to access the online registration system. For example, access to internet services may not be available or reliable in some rural communities; some applicants with disabilities may find use of internet services problematic.
Additional support may be available to help those who are simply not at ease with use of the internet, through public libraries, landlord membership organisations and advice and information services. The manual application process should be an exception, but remain an option for those that need it.
Although the term 'renewal' is generally used, a subsequent application after a registration has expired, or is about to expire, is a new application in terms of the 2004 Act. For practical reasons, landlords are invited to 'renew' their application before the existing registration expires. The IT system will issue automated requests at 90 days and 30 days prior to the expiry of the current three year registration period, where an email address has been provided. Where an applicant is unable to submit their application online then the person will need to complete a paper application form.
The point at which a subsequent application is submitted provides an opportunity to proactively engage with landlords and to consider the information provided by the applicant against any new information that may be available. For example, complaints from tenants, referrals to the First – tier Tribunal or information from other local authority departments or external agencies, might encourage a local authority to perform a more rigorous scrutiny of the new application.
Local authorities should have robust processes for dealing with registrations that expire, after issuing two reminders, and where no new application is made, to ensure that the landlord is no longer letting properties. Where practical, these may involve:
- follow up phone calls;
- checking the Council Tax register or electoral role;
- checking housing benefit or universal credit;
- checking property ownership; or
- enquiries at the property.
Where an application is submitted and approved after the expiry of the previous registration period, the start of the 3 year registration period should begin on the date of approval – the legislation does not make provision for the application to be backdated. A rent penalty notice can be considered for any period that the relevant person is operating as an unregistered landlord.
SSI 2008/403 amends SSI 2005/558 to make provision that an additional fee is payable where an application is submitted after two separate requests for an application to be made have been issued. See the section "Additional Fee" for further details.
If a landlord continues to let property without being registered or without having submitted a valid application for registration then they are failing to comply with registration requirements and enforcement action should be undertaken by the relevant local authority. Rent penalty notices may assist with this process and a report to the Procurator Fiscal can also be considered.
A valid application contains the information required by section 83 of the 2004 Act and is accompanied by the relevant fee. The online system is designed to ensure that applicants cannot submit an application unless those criteria are met. The applicant must ensure that the information is correct to the best of their knowledge. Falsely declared information (which if material) results in an offence having been committed. This is subject to a fine not exceeding level 3 on the standard scale. This would also represent a contravention of housing law. Such an application may be updated to show the correct information, or refused if the local authority believes the failure justifies a decision that the person is not fit and proper.
Local authorities should have robust processes for dealing with incomplete paper forms or forms that are not accompanied by the appropriate payment and take steps to address this as quickly as possible. Unless the prescribed information has been provided, a form cannot be considered to be a formal application under section 83. Incomplete forms could be returned to the person as being invalid. Alternatively, the authority may wish to contact the person to confirm that the incomplete form is not a valid application but that it will be held for a limited time to allow the missing information/fee to be submitted.
An application should not be entered on to the system unless the correct payment has been received and only valid applications should be approved or refused. Local authorities should consider the relevance of the defences in section 93(3) and (4) of the 2004 Act which only apply in the case of a valid application.
A valid application made within 12 months of a previous refusal does not allow the landlord to let property legally prior to a determination on the application being made. This is the exception to the statutory defences which normally apply.
Timescales for determination of applications
Landlords can legitimately let property, without committing an offence, once a valid application has been made but is awaiting a decision (see section on joint owners for exception) and so it is important that valid applications are assessed promptly. This will minimise the risk of tenants moving into properties where the landlord may ultimately have their application refused.
It will also ensure that local authorities are well placed to minimise the impact of section 21 of the Housing (Scotland) Act 2014, when this is commenced. This will introduce a new section 85B into the 2004 Act and establish a 12 month time limit for determining applications. Local authorities should consider this as the maximum time it should take to process an application.
Under the new section 85B, local authorities will be able to apply to the First-tier Tribunal for an extension to the 12 month period, before that period expires. The decision of the FTT on such an application will be final.
If the application is not determined within the 12 month period, and no extension has been granted, the application will be treated as having been approved and entered on the register on the day the 12 month period expired.
Registration in such cases lasts for a period of 12 months, in line with a similar provision for HMO Licensing. The registration status may be reviewed at any time if there is cause for concern but local authorities should consider the risks of not proactively approving or refusing applications promptly.
Email: Gary Mitchell, Gary.email@example.com
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House