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Don’t Panic!


The Residential Landlords Association appears to have got its collective knickers in a bit of a twist over proportionality. According to its press release and a report on 24dash, the RLA has suddenly decided that Powell v Houslow presents a dramatic threat to its private sector members (possibly triggered by our report on Khela v Dainter, heading to the Court of Appeal).

Here is what the RLA have said:

“At present landlords in the private rented sector are able to begin eviction proceedings based on a tenant breaching the terms of their contract if they fall into arrears on their rent by 2 months. Once a tenancy is ended landlords can evict using Section 21 – the so called no fault notice only ground for possession.

Recent rulings by the Supreme Court however raise the very real prospect now that it could become all but impossible to evict a tenant given the lack of clarity over what ‘proportionate’ action would look like.

I am aware of at least one case where a private tenant is relying on Article 8 to try to avoid eviction which has gone to the Appeal Court. We are waiting to see what happens in this case. Even if this does not go ahead another is going to come along and the question is going to have to be dealt with sooner or later.

If Article 8 does apply in the Private Rented Sector small scale landlords, renting just a couple of properties, would soon hit financial crisis point if they were unable to evict a tenant who simply failed to pay their rent for two months or longer.

Given the supply crisis in the private rented sector everything needs to be done to support and encourage new landlords to enter the market. By making evictions so difficult, you are likely to scare many off altogether.

We very much hope that the Courts will ultimately decide that Article 8 does not apply in the Private Rented Sector. This is the Government view. However, if it does we would then call on the Government to work with the judiciary and EU allies to establish a clear definition of ‘proportionate’ action in this case to provide much needed certainty to the housing sector as a whole.”

Oh, where to start?

There is the neat combining of Section 21 and Ground 8 proceedings. So the story is all about rent arrears, when Section 21 is what is at issue in Khela (and would be in most PRS proportionality cases, should the Courts find a proportionality defence extends to the PRS). And in any event, and certainly in an arrears case, there would be the landlord’s counterbalancing Art 1 Protocol 1 rights to be considered.

Then there is the plaintive cry that ‘no-one knows what proportionality looks like’. Well, as it is based on the specific circumstances of each case, it would be a little difficult to specify what would be proportionate in all circumstances. And there have been cases…

And lastly there is the glorious idea that it is up to the Government and ‘EU allies’ to decide what proportionality is, and ‘working with the judiciary’ no less. I think the RLA have got a bit confused by the word ‘European’ being attached to the Convention on Human Rights and the ECtHR being abroad somewhere. They also appear to have, to put it charitably, a muddled view about the separation of the courts and Government.

But the bit that I really can’t work out is what on earth the RLA are seeking to achieve by this bit of scaremongering. As a pre-emptive strike, it would appear to be next to useless. And the cry for the Government to do something about something which hasn’t even happened yet, (assuming that it does even happen in the end, and then that it is something that the Government could actually do something about anyway) is a curiously cack-handed approach to lobbying, reminiscent of the great petrol panic.

If it is a membership drive, then effectively telling landlords to be very frightened about something over which the RLA has no control whatsoever also seems an odd selling technique.

Perhaps they really have just panicked?

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.


  1. Rentergirl

    Landlords panic as they think might lose a chink of their armour. They can evict tenants by the power of thought (almost…) and so any notion that tenants rights are being enforced. Heaven forfend!!!!

  2. Jamie

    Eviction by the power of thought? Hmmmmmm. Ever tried to regain possession on discretional grounds? We have. Several months and several thousand pounds later we got a conditional possession order. The tenant is still there and continues to break the conditions but we know if we apply for posession he’ll launch another defence and it will end up in court again which the landlord can’t afford.

  3. Coiln

    The words used by Jamie are interesting. He used the phrase “we got a conditional possession order” and then “the landlord can’t afford”. A discretionary ground is based upon facts and evidence; if the facts and evidence are defended then it may be that the evidence was not sufficient. That could be a matter of a failure on Jamie’s part in terms of making the case. If this was an AST then the normal best advice is to issue under S21 rather than S8 and then to obtain a manadatory order. Discretionary is just that – the Court is not bound to make an order


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