I caught someone from the National Citizens Advice Bureau on BBC Breakfast this morning, commenting on a CAB report on the large number of people in private rented properties in bad condition who are promptly evicted if they complain or do anything about the disrepair.
Anecdotally, I’d certainly support this. We do hear from quite a few private tenants who have received notice or possession orders after raising repairs, or getting an inspection by the local authority environmental health. Often these people have been living in deadful conditions with only silence or worse from the landlord.
As the CAB spokeswoman pointed out, there is little or nothing to stop this happening once the fixed period of an assured shorthold has elapsed. Apparently, Australia has some form of protection from eviction while disrepair issues are underway. I’ll try to find out about this - could be interesting.
As it is, English tenants can only hope that their landlord is dim or greedy, because if the landlord goes the s.21/accelerated possession route, there is nothing they can do to prevent or delay possession if they are out of the fixed period. A separate claim for disrepair is possible, but always tricky when the ex-tenant is out of the property.
If the landlord is greedy, and if there are rent arrears, the tenant may be luckier. A possession claim on the basis of section 8 and/or 11 and 12 - all rent arrears of some form - presents the possibility of a disrepair counterclaim. This will certainly delay possession and, if the damages are enough to wipe out the arrears, put paid to the possession claim. The landlord will have to start afresh with a s.21 procedure, as one can’t run two possession claims side by side or amend the claim to insert grounds that weren’t in the Notice.
We had a case like this some months ago. Greedy or ill-advised landlord (because they were represented) made a s.8 claim for possession, after being served with a works order by the council once the client/tenant got Environmental Health in. The client, luckily, came to us. The rent arrears were substantial, but the disrepair significant. An immediate disrepair counterclaim was served. Of course, the matter then took many months to get to final hearing, and the result was that the damages more than cleared the arrears, possession claim dismissed, and the client had a grand or two over coming in damages and an enforceable order for repairs. We got costs…
But these are the very lucky exceptions. The CAB are calling for tenancy safeguards in these situations. It is, of course, a good idea, but frankly I can’t see any legislation happening soon. Everything will likely be put on hold pending the final report of the Law Commission review of housing law, which will be along in…a bit.
I read your posting after having written my own. We seem to have gone off in different directions! I agree with everything you have said though and agree that it looks unlikley, politically, as if the CABs suggestions will be taken up.
I don’t think restricting s21 is the right way to go anyway as it is likley to kill dead the private rented section.
I’ve read and commented on your post. I don’t think we are that far apart, but perhaps I’m coming from a day to day of people presenting with just this experience, and with less of your experience of the landlord’s problems.
I like your suggestion of the extension of the HMO scheme. This might have some effect. But I am concerned that it won’t be frequent enough in inspection or effective enough to really deal with the problem. There are barely enough inspectors to cope with the limited current inspection scheme, let alone the entire private rental sector. Enforcement is slow and infrequent at present, again a huge extension would just be overwhelming.
The New Zealand example in the CAB report is interesting:
It being open to the tribunal to find that this is a vexatious action by the tenant. This could easily be written in to s.21, with a paper application to the County Court, for instance.
This is hardly an undue restriction of the landlord’s right to recover their property. If there is fault on the part of the tenant, for instance, all the other grounds for possession remain open to use. And it is specifically a shield against an oppressive act by the landlord, not a cause of action for the tenant - “only if the Notice is served after the tenant sought to exercise a right or remedy” would prevent naughty tenants trying it on after service of a Notice.
In my experience as a housing paralegal this is the one of the big outstanding loopholes of residential housing law, and one causing very considerable hardship to thousands of households at the bottom end of the private rented market. The CAB report and its recommendations are long overdue.
My experience of advising private sector tenants is that a minority do suffer disrepair over long periods, notwithstanding the existence of licensing schemes and council enforcement powers. Whereas before deregulation in 1989 tenants suffering disrepair had an effective legal remedy, many of those I have advised nearly always balk at issuing proceedings because of the mandatory possession trump card held by the landlord.
Clearly many of those who have a rogue landlord failing to carry out repairs shall simply find better accommodation. However many at the bottom end of the market don’t have the resources to obtain an alternative in today’s market. In my experience such tenants conclude (not unreasonably) that a claim shall mean an eviction and months spent in temporary housing (or no help whatsoever from the council if they aren’t in priority need). They often have little hope of getting to the top of the waiting list for social housing, or a pretty long wait.
Whilst I often read and enjoy Tessa’s blog I don’t find her arguments persuasive. I’ve advised too many tenants in seriously damp flats whose only wish is to have a decent home for themselves and their family (compensation is rarely in my experience their motivation), but without the ability to achieve this.
Tessa’s statement that preventing the use of s.21 would kill the private rented market is frankly laughable. There’s no shortage of individuals willing to invest in the private rented sector, and no shortage of prospective tenants, given the mismatch between supply and demand fuelled by the growth in households. Its long overdue that we ensured that the most vulnerable tenants can exercise their legal rights without fear of retaliatory action which shall leave them on the streets.