What is a letting agent, what is a landlord, what the Tenant Fees Act 2019 covers and applies to, property guardians, other legislation you need to follow.
What a letting agent is
The Tenant Fees Act 2019 (TFA 2019) defines a letting agent as a person who engages in letting agency work.
Letting agency work means things a person does in the course of a business, and in response to instructions from a prospective landlord or a prospective tenant.
You may be legally considered a letting agent if your activities fall within this definition, for example if you:
- supply marketing or other services related to the letting of property
- arrange viewings
- get queries from potential landlords or tenants, and pass them on to clients
The law will still apply to you and your business even if:
- you don't have a physical premises
- you run your letting agency online
What a landlord is
The TFA 2019 gives no legal definition for landlord. However, it lists five categories of person likely to be included in the term landlord. The list includes a person who proposes to be a landlord under a tenancy.
The glossary to the Tenant Fees Act 2019 Guidance produced by the Department for Levelling Up, Housing and Communities (DLUHC) states that the landlord is likely to be:
- the person who owns a property for rent, and
- the person to whom rent is paid, if rent is required to be paid
A landlord could also be someone who doesn't own the property, for example someone who is renting the property from the owner and subletting it to someone else (the tenant).
If you're not sure whether the work you do falls under the definitions of letting agency work or landlord, you can get advice from:
- your local authority trading standards service
- your professional body or trade association
- an independent legal adviser
The Tenant Fees Act 2019
The Tenant Fees Act 2019 prohibits certain types of tenant fees, in order to make renting fairer and more affordable for tenants.
The TFA 2019 also amended some existing legislation around:
The TFA 2019 applies to letting agents and landlords in England only.
Types of tenancies the TFA 2019 applies to
The TFA 2019 applies to all of the following, regardless of the date the tenancy began:
- an Assured Shorthold Tenancy (AST)
- lettings for student accommodation
- licences to occupy housing
The TFA 2019 does not apply to:
- a social housing tenancy
- a long lease tenancy (under the Leasehold Reform, Housing and Urban Development Act 1993)
- a licence to occupy holiday accommodation
- some excluded licences to occupy
Any contractual clauses within older tenancy agreements (dated before 1 June 2019) requiring the tenant to make a prohibited payment have no legal effect.
Property guardians
A property guardian is someone who occupies a building short term, paying discounted rent. Under a guardianship, the property owner knows that their property, which would otherwise be empty, is occupied by someone who's looking after it.
For more information see the DLUHC guidance on Property Guardians
What the Public Register of Orders is and how to view it.
The Public Register of Orders ('the Register') has records of every order made. It's maintained by NTSELAT in accordance with section 8 of the Estate Agents Act 1979.
The Register shows whether there's a prohibition order or a warning order, including any variations of these orders.
Where an appeal has been lodged against a decision, the Register will indicate that the order or variation is within the appeal period or subject to appeal.
What warning orders and prohibition orders are, how to appeal, how to apply to have an order varied or revoked.
If you engage in estate agency work, you'll need to comply with certain legislation.
If you don't comply, you could be:
- prosecuted and fined
- prohibited from engaging in estate agency work
- issued with a penalty charge, if you fail to belong to a redress scheme
The legislation can be enforced by:
- the National Trading Standards Estate and Letting Agency Team (NTSELAT)
- your local weights and measures authority
- the Department for the Economy (Northern Ireland)
Enforcement action that can be taken by NTSELAT under the Estate Agents Act 1979 (EAA 1979) includes issuing warning orders and prohibition orders. These orders concern whether a person is unfit to engage in estate agency work.
Warning orders
A warning order:
- is a formal statement indicating that your behaviour is unacceptable
- allows you to continue engaging in estate agency work, under a strict set of conditions
- warns you that if they continue with unacceptable behaviour while engaging in estate agency work they may be considered unfit
A warning order can be made if, during the course of estate agency work, you:
- commit an offence of fraud or other dishonesty, or violence
- commit discrimination
- commit certain offences named under the Estate Agents (Specified Offences) (No 2) Order 1991, such as an offence under the Consumer Protection from Unfair Trading Regulations 2008
- commit certain offences under the EAA 1979, such as engaging in estate agency work whilst bankrupt
- breach certain provisions of the EAA 1979, such as:
- not being a member of a redress scheme
- failing to provide information on charges
- failing to declare your personal interest in a sale of a property
- fail to comply with an undertaking you accept, or an enforcement order made against you, under the Enterprise Act 2002 in relation to estate agency work
- fail to comply with requirements imposed on you under the Consumer Rights Act 2015 to produce information or documents
- engage in a practice declared undesirable under the Estate Agents (Undesirable Practices) (No. 2) Order 1991, such as discriminating against buyers who don't want additional services
If we issue a warning order, and you repeat the unacceptable behaviour while engaging in estate agency work, we're highly likely to:
- consider you unfit to engage in estate agency work
- issue a prohibition order against you
Prohibition orders
Prohibition orders can prohibit you from all, or some aspect of, estate agency work.
NTSELAT can issue a prohibition order whether a warning order was previously made or not.
A prohibition order can be made if you:
- continue to engage in or repeat unacceptable behaviour following a warning order
- commit an offence of fraud or other dishonesty, or violence
- commit discrimination in the course of estate agency work
- commit certain offences named under the Estate Agents (Specified Offences) (No 2) Order 1991, such as an offence under the Consumer Protection from Unfair Trading Regulations 2008
- commit certain offences under the EAA 1979, such as engaging in estate agency work whilst bankrupt
- breach certain provisions of the EAA 1979, such as:
- not being a member of a redress scheme
- failing to provide information on charges
- failing to declare your personal interest in a sale of a property
- fail to comply with an undertaking you accept, or an enforcement order made against you, under the Enterprise Act 2002 in relation to estate agency work
- fail to comply with requirements imposed on you under the Consumer Rights Act 2015 to produce information or documents
- engage in a practice declared undesirable under the Estate Agents (Undesirable Practices) (No. 2) Order 1991, such as discriminating against buyers who don't want additional services
NTSELAT can limit the scope of a prohibition order to a particular part of the United Kingdom.
Not complying with a prohibition order is a criminal offence. You could be prosecuted and fined.
Warning and prohibition order process
Before NTSELAT make an order against you, we issue a Notice of Proposal.
If you receive a Notice of Proposal, you should seek the services of an independent legal representative.
The Notice of Proposal includes:
- our intention to issue an order against you
- information about why we're issuing the order
We can ask anyone, including clients and potential buyers, to provide information, for example emails or paperwork, before we decide to issue an order or carry out other enforcement activities.
You have at least 21 days to explain why you believe the proposed order shouldn't be made. The Notice of Proposal will explain how you can do this.
An independent adjudicator determines whether, in their opinion, you're unfit to engage in estate agency work. When a determination is made, NTSELAT decide whether to make the order.
Appeal a prohibition or warning order
If you receive a prohibition or warning order, you have the right, within 28 days of receipt, to appeal against the decision of the lead enforcement authority (NTSELAT) to the First Tier Tribunal.
Your right of appeal and the procedures for appealing will be explained to you if an order is made.
You can make your appeal on GOV.UK.
Apply to have an order varied or revoked
You can ask for your warning or prohibition order to be varied or revoked, if your circumstances have changed.
The cost of the application is £2,500. This is set by the Estate Agents (Fees) Regulations 1982. The fee must be paid in full before we can consider your request for variation or revocation.
For more information on this and to request an application form, contact NTSELAT.
What regulation you need to comply with if you collect information about individuals.
If you collect information about individuals for any reason other than your own personal, family or household purposes, you need to comply with the UK data protection regime set out in:
- the Data Protection Act 2018 (DPA 2018)
- the UK General Data Protection Regulation (UK GDPR)
If you're a letting agent or property manager, it’s highly likely you’ll need to comply with Data Protection legislation.
ICO fees
Under the Data Protection (Charges and Information) Regulations 2018, every organisation or sole trader who processes personal information must pay a data protection fee to the Information Commissioners Office (ICO), unless they’re exempt. The fees range from £40 to £2,900 depending on the size and type of your organisation and your turnover.
The ICO regulates data protection in the UK. They’ve produced a data protection guide and an online self-assessment tool to help you understand if you need to pay a data protection fee.
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