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Am I my Tenant's keeper?

Posted on 1 May 2019

In a legal first, Trading Standards successfully prosecuted a landlord for knowing or suspecting that his property was being used for criminal activity. 

The property was a corner shop that was being used to trade illicit cigarettes. Over the years Trading Standards had conducted several raids of the property and prosecuted the people running the trade but it still continued. Trading Standards had repeatedly written to the landlord informing him of the actions of his tenant and asking the landlord to take action, warning him of the consequences of continuing to accept the rent. The landlord's response was simply that the tenant's actions were 'nothing to do with him' and he did not take any action against his tenant.

The landlord's stance backfired. The court found him guilty, giving him an 8 month suspended sentence, 150 hours unpaid work and ordering that the rent he received from the tenant be subject to a Proceeds of Crime hearing where it is likely that all or some of the rent will be confiscated.

It is worth bearing in mind that this case concerned an individual of previous good character who was a landlord of a single cornershop. Consequently it may be that more sophisticated landlords get less sympathy and fewer warnings from regulatory bodies before such action is taken. Trading Standards said in this case that they did not want to prosecute the landlord but felt there was no alternative and hope that this serves as a lesson to other landlords. As such, warnings from Trading Standards or other regulatory bodies as to the actions of tenants need to be heeded carefully and prompt action should be taken against the tenant or there may be criminal and financial consequences.

Although sophisticated landlords should take note that there can be criminal and financial consequences for them for a tenant's criminal activity, we don't expect to see regulatory bodies rushing to bring prosecutions solely to seize profits from landlords.  A recent case regarding planning offences has served as a reminder that prosecuting authorities must act fairly and in the public interest when deciding whether to prosecute and, crucially, warning that it was not appropriate to base their decision on the possibility of obtaining a confiscation order to the authority's financial benefit.  In that case the prosecution amounted to an abuse of process and was stayed.

In theory, this should mean that the possibility of such an order being made in the prosecutor's favour will play no part in their determination of the evidential and public interest test. In practice, prosecuting authorities will need to ensure they can demonstrate the necessary tests are met before commencing proceedings of this nature which should ensure landlords who take appropriate steps against criminal tenants are not sitting targets.  

R v Leonardo Viscomi [2019] and R v The Knightland Foundation & Friedman [2018] EWCA Crim 1860.

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