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:
- 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
- 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)
- to prevent a landlord from serving a s.21 notice in the absence of a current gas safety or energy performance certificate
- 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
- 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
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.