A top property lawyer has warned that landlords could get caught out by tougher rules around tenant discrimination unless they evidence legitimate reasons.
Enforcement of a ban on child and benefit discrimination in England will be through civil penalties made by local councils, explains David Smith, at Spector Constant & Williams. However, a change under the Renters’ Rights Bill means the standard of proof required for issuing a penalty will be reduced from the criminal standard of “beyond reasonable doubt” to the civil standard of “balance of probabilities” - from a 95% certainty to a 50% certainty.
“I am very concerned about the change in the standard of proof,” says Smith. “I can envisage an over-enthusiastic officer spotting unlawful discrimination at the lower standard of proof based on pretty flimsy evidence.
“The lesson here for landlords and agents is to ensure that there is a clear chain of evidence with an explanation for a refusal which is not discriminatory.”
He explains that landlords can refuse children if it is a “proportionate means of achieving a legitimate aim” such as to avoid statutory overcrowding under the Housing Act or to avoid a room becoming over-occupied in breach of a licence condition or based on HMO statutory size limits.
Around benefits, he adds: “Simply saying that a landlord did not want to let to benefit claimants would be unacceptable. However, the legislation is clear that nothing in the new rules prevents a tenant being refused on the basis of income, if they simply cannot afford the rent.”
Smith predicts that there will soon be conversations around upgrading pet protections by making it discriminatory to prohibit pets.
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