10/11/2008

Retaliatory Eviction Campaign

As many readers will know, Debbie Crew has been conducting a campaign about retaliatory evictions – typically in private tenancies where a tenant has complained about conditions in the property and got Environmental Health in, and the landlord promptly issues accelerated possession proceedings, to which there is no defence. I first mentioned it back here. Here is Debbie’s blog of the campaign.

Debbie has a lot of support for the campaign, including from ATRO, the tenancy relation officers organisation. She has cross-party parliamentary support, expressed in an Early Day Motion. But the final leap to getting proposals into the forthcoming green paper on private lettings needs a further hefty push, and particularly concrete evidence of the scale of the problem. (The York paper having helpfully dismissed CAB etc. concerns by saying, in effect, ‘well they would say that, wouldn’t they’ – the Mandy Rice Davis approach to policy formulation).

Debbie says that people with experience of retaliatory eviction, particularly tenants, are welcome to make contact and pass on their experience via the Campaign’s Facebook page.

My own (limited and anecdotal) experience is that this is an issue, particularly with the worst private landlords and, all too often, for the worst off and optionless tenants. To me, that in itself suggests action would be merited, regardless of how widespread the problem may be across the entire private sector.

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.

11 Comments

  1. Jim Paton

    Being long enough in the tooth to remember pre-AST times and the glories of Rent Act protection (when not evaded by “licences”, “holiday lets” and suchlike scams), it seems that complaints about disrepair in the private sector are, relatively, a mere trickle nowadays. I have no statistics to hand, this is merely an anecdotal impression, but I’m sure it’s true.

    Is this because private landlords are no longer renting out rickety slums which are hazards to health and wellbeing? Answers on a postcard, please.

    A far larger problem than retaliatory evictions per se must the level of complaints suppressed, of disrepair and harassment endured, for fear of them.

    Without security of tenure, civilised conditions and responsible behaviour by landlords in the private sector will always be patchy at best.

    Reply
  2. Rudy

    Jim – surely you know! Only those tenants who actually want to get evicted, because they can’t find anywhere halfway decent and affordable in the private sector and are prepared to take their chances in the homelessness/allocations lottery, will bring claims. I call them “death-wish claims”, and am dealing with one just like that right now – pensioner in poor health, long term AST, back-to-back unheated house, etc.

    On a slightly different tack, I am surprised that no Local Authority has yet tried to justify a finding of intentional homelessness by saying that “T commenced a claim for disrepair against L, despite having no rent arrears, and in the near certain knowledge that it would lead to L bringing possession proceedings”. Maybe I am tempting fate by even suggesting it idly – but joking aside, take a look at the case law, it might be worth one of them having a pop at that one…

    Reply
  3. NL

    @Rudy: They have tried. Not very long ago I ran through the JR pre-action protocol against a London Borough that shall remain nameless on a refusal to provide interim accommodation on s.202 review. The s.184 decision was intentional homelessness because the tenant had repeatedly complained about a non-functioning shower and the landlord had said this was why the s.21 possession had taken place. The LA said the repeated complaints were unreasonable.

    I said any decision on interim accommodation had to consider whether there were any manifest flaws in the s.184 and there was a big glaring one right in front of them that the decision failed to address. The LA initially said there weren’t any manifest flaws, but folded 30 minutes before I issued and provided accommodation. I heard that the s.202 (done by an advice centre) was eventually successful.

    I do not exaggerate at all. I wish I were.

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  4. J

    Just to return to the problem of retaliatory evictions – has anyone had any success in arguing that the s.21 notice is void, having been served in bad faith? There are some interesting accademic pieces about this argument, but I’m not aware of anyone running it in an actual case.

    Reply
  5. NL

    Bad faith? Do tell more. Would it be akin to oppression or abuse of process? Hard to argue in the face of an unqualified right to possession, I would have thought.

    Reply
  6. J

    Rous v Mitchell [1991] 1 WLR 469. NTQ served on an agricultural tenant due to subletting. Landlord had, in fact, given permission for the subletting. Landlord held to have acted recklessly to the point of dishonesty and the NTQ was held to be invalid.

    There are other (better) cases, but this is the only one I can remember at the moment.

    Reply
  7. NL

    OK, a landlord alleging breach on the basis of something he has actively condoned, I can see – akin to an estoppel, I suppose. Not sure quite how that would map onto a ‘no-fault’ claim for possession, though.

    Reply
  8. J

    NL – I’ll dig out the accademic pieces in the next few days and send them over.

    Reply
  9. chris wren

    i recall a tutorial by the tutor who became Lord Grabiner, saying to us in 1972, in relation to retaliatory eviction and the dissenting judgment in Chapman v Honig [1963]2QB 502 : “I beleieve that will be the law of England one day.”

    No government has ever considered in any proposed legislation the vulnerability of the tenant in such circumstances as disrepair or any of the many problems encountered during an AST, let alone the unusual facts of Chapman v Honig where the landlord evicted a tenant for the sole reason the the tenant had been compelled to give evidence in court against the landlord.

    As it might help the CAB campaign on retaliatory eviction, I will ask the tutor of those days if he is still of the same mind,and if so would he lend his name to this campaign…

    Reply
  10. Phil Thorneywork

    I have worked in Housing Enforcement (Environmental Health) for over 20 years. On average, I would say that retaliatory eviction has been attemted (sometimes successfully)approximately 10% of all cases by a landlord when I send my first “I have recently inspected the property and would like to bring to your notice……”
    However, I always let the landlord know that the recent change in Housing Law (Housing Act 2004) now removes the connection between occupation and statutory action.
    (- For those who did not know, the 1985 Husing Act (previous legislation) stopped all action on serious cases if the tenant left – however the tenant left! -)
    BUT I also inform the landlord that Housing Benefit will be informed that work is outstanding and please do not process any claim for this property until an inspecting officer has verified it is complete. AND I go straight to enforcement notice – being certain due to his / her actions that I am dealing with a “recalcitrant landlord”.
    Therefore what doees a landlord hope to gain, no tenant = no rent + no benefits from a new tenant + doing the work anyway + cost of service of the notice AND having housing action recorded against him, this is no small thing as it prevents being a “fit & Proper person for HMO licensing purposes (and bad properties do not attract self funded tenants anyway)
    My means of attack is always to hurt their pocket , it makes landlords realise that their is no “GAIN” in evicting the tenant when repairs are needed.
    On the up side, I also ensure that I inform the landlord how lucky theuy are that the tenant cares about their house, after all the average price of property these days means that it is a significant asset – reducing condition means reducing value, most landlords derive significant income from increasing values (roughly 35% of income on larger portfolios).
    Last ditch attempt is to advise the tenant how to appeal and let them know that they can request all my inspections for the appeal – many district judges will pore over the application for posession and reject it on a technicality, if they know it is only because the tenant asked for work to be done.
    Good Luck out there – if we dont get legislation that is specific to retaliatory evictions, lets use the stuff we HAVE got to best effect

    Reply
    • NL

      Phil

      That is very interesting – and hopefully useful for some. Thank you. Perhaps more LAs might adopt this approach.

      Reply

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