Retaliatory Eviction and Law Reform

The government (through its Minister for Communities and Local Government, Stephen Williams) today announced its backing to Sarah Teather’s private members bill, whose aim is to prevent landlords from evicting tenants who have complained about disrepair in their home or where health and safety hazards are found to exist at the premises, using the accelerated possession procedure. Statistics provided by Shelter show that 200,000 tenants faced possession proceedings in the last 12 months in response to complaints about the condition of their home.

The bill in its current form has the following objectives:

  1. to prevent a landlord from serving a s.21 notice on a tenant within 6 months of service of an improvement notice, a hazard awareness notice or a notice of emergency remedial action under the Housing Act 2004
  2. to prevent a landlord from serving a s.21 notice within 6 months of  ‘a relevant complaint.’ A ‘relevant complaint’ means notification in writing of any defect which would give rise to the repairing duty under s.11 of the LTA 1985; or that the premises are prejudicial to health (except where that prejudice is a result of tenant neglect); or that a Cat 1 or Cat 2 hazard exists at the premises (for which a local authority environmental health officer’s certificate would suffice)
  3. to prevent a landlord from serving a s.21 notice in the absence of a current gas safety or energy performance certificate
  4. it will be a defence to a claim for possession if a tenant can show that the s.21 notice was served within the relevant period
  5. except where a gas safety or energy performance certificate is absent, a landlord may still recover possession where they have entered into a binding contract for sale of the premises before the court hearing

The bill is due to undergo a second reading in the Commons on 28th November 2014

Comment

The protection of tenants from the acts of unscrupulous landlords is a principle which is to be welcomed wholeheartedly but the bill raises a host of issues in its current form. A tenant would not appear to be required to engage the disrepair pre-action protocol to rely on the present s.(2)(2)(a) and neither would a landlord need to be yet in breach of the s.11 duty.

But would a ‘relevant complaint’ be valid if made to the landlord’s agent rather than to the landlord directly? And what if there is a dispute about liability, or the landlord considers the defect de minimis, or the defect is better characterised as a nuisance rather than a breach of s.11? And are there any Equality Act issues which arise because of the requirement for a written complaint? The 6 month time limit is also interesting. On the hand, one can see how an eviction may cease to be retaliatory but on the other hand, what if a tenant has simply given up writing and has resorted to phoning or attending in person instead to get the work done? Would they be deprived of the benefit of this provision after 6 months has elapsed? It is difficult to see how a full blown trial could be avoided in these circumstances, which was probably not the intention of the drafters. It therefore seems that the involvement of the Environmental Health department is likely to be the more conclusive means of making out a defence to an accelerated possession claim.

It is clear that the bill will need some working out in order to overcome these (and doubtless numerous other) difficulties but it is an excellent proposal that we will continue to track closely.

 

 

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.
Posted in Disrepair, Housing law - All, Possession.

22 Comments

  1. As always I appreciate your comments on this issue as it helps us to debate a fair and reasonable outcome for both tenant and landlord. In my opinion I feel we should take on the process that is successfully in place in other countries as they have the case law to allow us to learn what works in practice.
    I would like to see an independent housing panel paid for by the interest gained from the money in the tenancy deposit scheme. This housing panel would weed out bogus claims within 15 days of a complaint made by a tenant and support legitament claims through the process. The six months grace suspending the S21 notice would allow time for the relationship to be rebuilt or for the tenant to find other more suitable accommodation. The main point for the bill would to educate landlords that it is not in their interest to shirk their responsibly and to do what is legally required of them. Also it would give tenants a voice to provide evidence which will enable EHOS and Tenancy relation officers to carry out their work to improve the sector currently seen as second rate to owning your own property.

    • I’m not sure that an independent housing panel would work. There would need to be inspections to ‘weed out’ the bogus claims, so effectively and expensively duplicating the role of Council EHOs. As disrepair claims are currently county court matters, the panel couldn’t ‘help claims through the process’ and my personal view is that disrepair is not suitable for a tribunal process, as tribunals do not have enforcement powers that are (and believe me they are) frequently needed.

      It is not ‘suspending’ a section 21, but saying that a s.21 served in those 6 months is of no effect. There should be no suggestion that the 6 months ‘enables tenants to find other accommodation’ as all they tenants are doing is asking their landlord to abide by their legal obligations. If the tenants want to move, that is up to them, but it should categorically not be suggested as a consideration or outcome of the process.

      The main point of the bill should not be to educate landlords. Their legal obligations under section 11 are perfectly clear. It is aimed at those unpleasant landlords who would rather dispose of their tenants than carry out their obligations. This is not a problem of ignorance, but deliberate avoidance.

    • Thanks for your comments Giles. It is always difficult to explain ideas when trying to be concise, however, I feel you have misread my thoughts. Firstly, independent housing panels are in operation in lots of countries including Scotland and are used for the purpose of sorting out issues such as disrepair designed to avoid court action and lengthy disputes, they are not a tribunal as you have suggested. They are tasked with gaining information to inform their judgement from the relevant people such as EHOs or TROs not duplicating their work. The power of not allowing or suspending the use of the S21 would give them teeth to be able to deal with rogue landlords. Cases where enforcement powers were required would be referred on to the C Courts. Landlords who are found guilty could be penalised for not settling out of court. Also tenants would have the six months breathing space to rebuild their relationship with their landlord or choose to move to another property.
      I used the word ‘educating’ landlords to illustrate the new laws would act as a ‘preventative’ making them think twice about shirking their responsibilities.
      My ideas are aimed at helping both tenant and good landlords and reducing court time.

    • Debbie

      Thanks for the explanation – I didn’t think the panels were a tribunal, just that the panels couldn’t assist with the process of a claim if the process involves county court proceedings. But now you are saying that the panels reach ‘judgments’? That surely makes them a kind of tribunal, even if only a kind of arbitration tribunal. County Courts don’t enforce tribunal or arbitration decisions currently. So this would need a wholesale change not just to statute but to the operation of the courts and tribunal systems as they stand.

      As any awards of compensation and orders for works by such a panel would be unenforceable and separate county court or Magistrates Court proceedings would be needed anyway, I’m not sure what your proposal adds, apart from delay. My experience is that landlords who deliberately fail to carry out repairs do not heed any warnings and would quite simply ignore the panel.

      In addition, I would be concerned about issues of both liability and compensation. Liability can be complex (cf plaster, with took the court of appeal 28 years to sort out from when it first became an issue). Would the tenant have legal representation? If so, how is that funded? Likewise compensation, my experience is that the Ombudsman and arbitration tribunals give pitifully low awards compared to the legal basis for assessing damages. This is because they don’t know any better and there is no legal representation.

      So, as you might have guessed, on the whole, I’m not in favour of your idea. It isn’t just a question of it working in other jurisdictions, you’d have to deal with the entire legal framework of Landlord and Tenant law to get such a panel to work fairly and properly.

    • I feel frustrated when I read lists of all the potential problems with bringing in a law that protects tenants from eviction for exercising their rights. Do we just ignore this issue because it is too difficult to come up with a solution? I have been that CAB worker that has advised a tenant what their rights are and then added the caveat that by pursuing their rights there is a possibility that they may lose their home.

      When I wrote the tenants dilemma report back in 2007 I researched the methods used in other countries . For example the US has had laws dealing with retaliation evictions since 1965. Can we learn from this? The Law Commission spent millions on reviewing the whole PRS which resulted with a very nice study sitting on a shelf gathering dust. The Julie Rug report of which I am not a fan suggested a system that had the landlord lobby on side, again added to the defunct Law Commission report !

      I urge anyone who has any experience of this field to think of solutions that would work and not just pick holes in anything that is suggested. This way we may move forward without wasting any more tax payers money skirting around the real issues. If we had a secure PRS, we may not be at the mercy of the banks and people would choose to rent as a first choice and not treated like second rate citizens.

    • Debbie, I am all for something that protects tenants in excising their rights, believe me. I think the Teather Bill is a start, and will hopefully be improved as it progresses.

      However, absent a wholesale reform of landlord and tenant law like the Law Commission report (which is now effectively being implemented in Wales with the Renting Homes Bill), it is difficult to simply graft other jurisdictions’ answers onto English law. My nit picking was simply intended to indicate that moves to improve tenants’ rights can actually result in making them worse in other ways.

      If there was a proposal for wholesale reform, I could well be behind it (depending on the proposal, of course). We are watching what the Welsh are doing with huge interest.

    • I agree that grafting other jurisdictions doesn’t work, however, picking out what will work here and leaving the rest behind is a good place to start. I have taken my eye off the ball in recent years and pleased you have pointed out the renting bills progress in Wales. Martin Partington and the Law Commission deserve to have their hard work implemented, after all tenants are consumers and deserve the same level of protection that main stream consumers have come to expect.
      Wouldn’t it be a better world though if by standers looked for solutions rather than faults? There is a lot of great minds out there including you who could come up with viable solutions for the greater good.

    • Believe me, we are doing our best behind the scenes. But it takes time, opportunities and tactics. The Govt supporting the Teather Bill was partly down to some epic work by Shelter, for example.

    • When I began this campaign as a lone voice there was next to nothing on the slate, so I am aware of what goes on behind the scenes. I look to people like you to oil the wheels and not put the breaks on. The campaign I led was successful because I was nieive enough to believe in a system that recognises a problem looks for a solution and implements it. As you say time, political gain and opportunity wins every time.

  2. The Shelter statistics designed to shock certainly do the job – those are big numbers but I would question how accurate and relevant these figures are. The Sarah Teather reference above refers to ‘accelerated possession procedure’. The Shelter reference refers to ‘possession proceedings’. Ignoring the semantics and questionable data for a moment what exactly is the problem we are trying to solve? I would suggest the real problem is landlords who do not comply with:
    S11 repairing obligations
    The Energy Performance of Buildings (England and Wales) Regulations 2012 Gas Safety (Installation and Use) Regulations 1998 Reg 36

    There has to be an easier way to enforce these regulations than giving the tenants a ‘get out of jail’ card and all the associated shenanigans that will go with this.

    Like deer in the headlights I can see what is coming next……as part of the referencing process landlords will ask tenant applicants the question ‘Have you ever made a relevant complaint against a previous landlord?’ They won’t care how valid the complaint was, the landlord simply won’t want to take on a complainer even if they themselves comply with all the above.

    • Tom, I agree that the Shelter figures are, at best, an approximation. But anecdotally, from my own practice, it is a significant issue.

      I agree that the problem is some landlords’ compliance with repairing obligations, but ‘enforcing the regulations’ won’t help when the problem is that these landlords evict tenants who complain.

      There is no difference between the Teather ‘accelerated possession procedure’ and the Shelter reference to ‘possession proceedings’ – both are referring to possession claims brought on a s.21 notice. Nothing in the proposals would affect s.8 (fault based) possession proceedings.

      I’m not sure how a restriction based upon verified lack of repair can be described as a ‘get out of jail’ card for tenants. The issue, after all, is the landlord’s ability to avoid their obligations by getting rid of the tenant.

      As to the referencing process, I can see the OFT taking an interest in that…

    • If you enforced the regulations surely tenants would not have a legitimate complaint would they? Stopping a landlord from issuing a S21 is not addressing the root cause, it is addressing a symptom of the cause. For a lasting solution try to address the root cause which is through things like education and enforcement of existing regulations rather than introduce yet another layer of regulation. It seems like nobody is big enough or bold enough to address this so we are coming up with a sticking plaster for what should be open heart surgery. Blocking a S21 for 6 months is great for 6 months after which the rogue landlord evicts the complaining tenant who caused him so much grief and its business as usual? and so it goes on. Thankfully I can’t say the issue Shelter refer to is big in my experience though I do know of one case locally where the weed smoking tenant kept complaining about the bucket the landlord put under the leak in the loft filling up. Re OFT bit of a joke really as in my experience few landlords follow their guidance and what they say is never checked/enforced so OFT can say what they like and add it to all the other papers they produce but meanwhile back in the real world :-)

    • Tom

      Section 11 liability comes into play when the tenant notifies the landlord of a defect…

      What you are suggesting would mean something like 6 monthly checks on every single PRS property by Council EHOs. Still sound like a good idea? And a levy on PRS landlords to pay for it. Oh and required landlord licensing so that the Council knows where all the PRS properties are. And of course the fees on the landlord to pay for it.

      The Teather bill is very far from a solution. But I don’t see anyone coming up with an alternative.

      As to landlords including a question in referencing, that would clearly be an argument for compulsory licensing if they were going to behave so badly. And what could they do if the tenant lied? Absolutely nothing. Any argument on misrep would be laughed out of court.

    • Tom, we have currently have a system in place where there is no landlord register and so we rely on tenants to come forward and complain about unsafe homes because the landlord is shirking their responsibilities. If we expect them to put their heads above the parapet the least we can do is to take away the ‘get out of jail card’ that current rogue landlords can rely on. If you compare this to the protection that whistle bower employees have, there is no difference as losing your job is as distressing as losing your home.
      The suspending of the S21 for 6 months is not ideal but it would give time for things to cool down and for the tenant to seek alternative accommodation should they wish. Also, it would serve as a preventative measure for landlords who are considering this loop-hole as they would become under the radar of The LA and future tenants would benefit from their help. The important thing to remember – if a landlord is responsible this law would not effect them in a negative way. However, it would help clean up the industry by forcing out the rogue landlords who give the whole sector such a bad name. Why should good landlords have to compete in a sector where rogue landlords get off scot free and rent out non-decent homes? In my experience this is an important root to the problem and with the absence of a radical over haul to the sector is a must.

    • Now here is a problem that is ‘very common’ in in my experience….tenant raises some HHSRS type issue with the landlord, landlord does nothing (thump as head goes into sand!), tenant gets cheesed off so up sticks and moves rather than confront the landlord (number of reasons for this). Within 24 hours landlord has found his next tenant (we have 25-30 applicants per property remember). Meanwhile back in cuckoo land, has the Teather thing solved the problem? I will let you answer that.

  3. Tom, if the tenant had protection from eviction maybe they would fight their cause. Moving home as a first choice is madness as it is stressful, expensive and there is currently no guarantee the next landlord may be better.

  4. I am amazed how many of my clients with disrepair counterclaims are living in very poor conditions but don’t want to move or be evicted. While the cynical may say that is because the disrepair is exaggerated (which of course may sometimes be correct), it does suggest that finding new accommodation may be so difficult/stressful as to make living with disrepair a more palateable option.

    • 1) Becuase it is their home. They want to continue living there just in a condition that the law requires. 2) It costs a lot to move (removal men, agents fees, deposits etc). 3) The demand for property is so great that they may not find anything better.

      I completely understand why people don’t want to move. Putting down roots is important. In the post 1997 world people have forgotten that.

  5. I agree that retaliatory evictions are a menace and something needs to be done But I’m not sure this has been though out very far.

    I take it that the complaint about the s11 defect has got to be a justified complaint, proved in court on the balance of probabilities as correct. Otherwise she may as well just abolish s21 notices.

    A bright tenant will presumably find something wrong with their property (few properties are perfect) every 5-6 months and notify the landlord accordingly, thus being exempt from s21.There appears to be no de minimis limit on the defects.

    s21 has had a large part in the reawakening of private sector housing. This proposed reform looks more likely to reduce the supply of rented property than increase the standard of maintenance. And it won’t only penalise the bad landlords, but everybody. As you say, this bill is going to need some working out.

    • In countries where there is a frame work to deal with RE they have a rule that the tenant can only use this defence once in any twelve month period.
      The key for good landlords is to keep upto date paperwork signed by the tenant to say that an inspection has been carried out every six months and all Saftey measures have been complied with signed by the tenant. This will be their defence should there be a claim against the use of a S21.

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