Waxed Moustaches

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.

moustache.pngAs 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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Disrepair, Housing law - All, Possession and tagged , , , , , .

5 Comments

  1. 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.

  2. 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:

    “A tenant can apply to a tribunal for an order to declare the notice is of no effect on the ground that the landlord was motivated by the tenant exercising a right or remedy”.

    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.

  3. 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.

  4. Re: the final report of the Law Commission of housing law referred to above: what was its outcome? I got Environmental Health in on 18th May 2012 and they established a Category 1 Hazard in relation to fire risk due to deficient electrical installations, moving to cut off the house’s electricity supply on the same day. The landlord, who lived in, served me seven weeks’verbal notice immediately.

    Unlike the case you refer to, I had maintained rent payments up to the day of the inspections, being advised that to unilaterally withold part of it would be prejudicial to my case, should matters go to court.

    I was in a self-contained flat within the building, but had been without electricity in two out of four rooms since circuits failed in February 2012. The immediate cause was high demand by more than one tenant on the 20-amp electrical supply at a time of sub-zero temperatures and when the central heating installations were also not functioning adequately at the time due to poor maintenance.

    The landlord ignored my requests for a decision on a reduction in rent. In the end, I carried out my warning that I would contact the local council. I had to be still in residence in order to allow inspectors into the ground floor of the property, where I lived. Officials had to call on the services of a police officer to get the landlord to open the rest of his house to inspection, as he had locked the door to the upper floors when he realised they were in the house.

    I have had no word from the council about help to relocate, but must remove my possessions soon as the lack of thermal insulation is making the rooms damp. Common law states that I may terminate the AST unilaterally, citing breach of contract on a core term (in this case provision of mains electrical service). This is regardless of the issuance of verbal notice by the landlord, which does not conform to the normal written two-month notice required in the case of an AST past its initial six-month period.

    I am now staying with a friend and looking for alternative accommodation. Any advice on how to proceed against this recalcitrant and miserly landlord, who exposed his lodgers to an unacceptable and illegal level of risk? If he is convicted of operating an HMO without a licence, can I appeal to a tribunal for a rebate of rent? Short of that, any chance of obligating him to pay for my relocation costs? He is unlikely to have had any Landlord’s liability insurance policy against which I and other occupants of the building might be able to claim.

    Jon

    • Jon

      We can’t offer individual advice via the blog, I’m afraid. In the circumstances, I would suggest that you see a specialist housing solicitor as soon as possible. You can find legal aid specialist advisors via the link at top right. Or call Shelter – the advice line number is at this site: http://england.shelter.org.uk/

      The Law Commission report was released and almost entirely ignored by the then Government and the subsequent one.

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