The revenge of retaliatory eviction law

After the Teather ‘revenge eviction’ member’s bill was talked out by a couple of Tory MPs, (Chope and Davis), the question was would the proposals survive in another form before the election.

Well today, the DCLG announced the Government’s proposed amendments to the Deregulation Bill – just headed to the Lords before Third reading in the Commons. We assume that Chope and Davis won’t pull silly games with Govt amendments…

The proposals aren’t wholly the same as the Teather version. There are some distinct problems, both practically and legally, but also some additional amendments around s.21 that are of interest.

The substance of the retaliatory eviction amendments are:

Preventing Retaliatory eviction

(1) Where a relevant notice is served in relation to a dwelling-house in
England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house-
(a) within six months beginning with the day of service of the relevant notice, or (b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where-
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,
(b) the landlord-
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,
(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord, (d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and
(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which-

(a) provides a description of the action that the landlord proposes to take to address the complaint, and
(b) sets out a reasonable timescale within which that action will be taken.

(4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.

(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.

(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).

(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.

A ‘Relevant Notice’ is

(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or

(c) a notice served under section 40(7) of that Act (emergency remedial action);

“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Note, not a hazard warning, or an EPA s.80 notice. Nor an early notification letter from a legal representative, or service of an expert’s report under the pre-action protocol, or anything else one might reasonably regard as a trigger event for the landlord having failed to carry out repairs.

So, the process is: tenant writes to landlord or agent (assuming either can be found) giving notice of problem. landlord has reasonable time to sort. If not, tenant complains to Council. EHO inspects. Improvement/remedial action notice issued. At that point, any s.21 issued after the tenant’s written notice becomes invalid, including in ongoing possession proceedings (see (6)).

What this means is not only that an Improvement/Remedial notice is the only way to trigger the ‘invalid s.21’, but that there is a definite timescale – if a possession order has already been made, a subsequent notice by the Council is of no effect in overturning the possession order.

There is an exception for the defect/issue being caused by untenant-like behaviour (which will be fun with mould issues), or where the property is up for sale (with restrictions).

The whole shebang is utterly reliant on Council EHOs reacting and serving notice within the ‘section 21 notice period and possession proceedings before possession order’ timescale. Say 3 months – but could be less, depending on ‘reasonable period from tenant’s notice and date of service of s.21. This action by the council is crucial.

And of course, tenants will have to know to go to the Council EHOs (and persevere in doing so).

Also, Housing Associations are excepted (why?) and this will, for the first three years, only apply to new ASTs after the Act to be is in force. This latter puzzles me, as service of a s.21 after the commencement date would not be retrospective legislation. Does the DCLG want to give landlord a chance to retaliatorily evict their existing tenants?

The other interesting bits are a ban on service of a s.21 with the first 4 months of an AST and a provision that:

21A Compliance with prescribed legal requirements

(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to-
(a) the condition of dwelling-houses or their common parts,
(b) the health and safety of occupiers of dwelling-houses, or
(c) the energy performance of dwelling-houses.

(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

(4) For the purposes of subsection (2)(a) “.common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.

(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

So, we shall see what, if anything, turn out to be prescribed requirements.

There is a further provision for a requirement for provision of information to the tenant by the landlord, such as may be prescribed by regulation. Again, we shall see.

And I can’t resist – given that the RLA maintain their ridiculous claim about already existing defences to a s.21 possession claim, despite it being dismantled – pointing that the RLA put out a press release claiming that the Govt amends meant that a s.21 notice was invalid if served after a tenant had made a repair complaint. The RLA really do have an interesting approach to legal analysis.

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 .

29 Comments

  1. Pingback: Ben Reeve Lewis Friday Newsround #190

  2. what is it with the drafts men & women these days. That is almost incomprehensible. No one who doesn’t already do housing law will understand it.

    What hope does a member of the public have trying to defend possession proceedings.

    Is it not about time that we just start again on tenancies and come up with a clear system.

    • It is not easy to work through. Let us hope there is an explanatory booklet. Though given the MoJ’s recent track record on those…

  3. The proposed legislation has I believe been unnecessarily complicated by the intervention of the All Party Parliamentary Report into the Private sector published on 15 December that suggested that more protections are needed from spurious complaining tenants. Essentially the need for the written complaint to the landlord before any LA involvement stems from that. Most practitioners know that tenants have often made several complaints over a period before resorting to outside help. We also know that LAs will usually not issue a formal notice before they have given a landlord opportunity to resolve a problem. Indeed they are required to act in a proportionate way, and not to move to immediately move to formal action. Unless of course new guidance is to be issued to exempt an LA from that caution where there is evidence of a written complaint from the tenant not having been acted upon.

    The RLA are again today suggesting that further research is necessary to determine whether the courts and LAs have capacity to cope with the extra work that will inevitably be caused if the legislation is passed.

    I do not seem to remember that they suggested that research was needed to determine if LAs could could with the extra work caused by the new regulations on Letting Agents.
    I think that the government amendment has made things less clear than the Bill originally proposed by Teather

  4. From the RLA press release:

    “Under the amendment, landlords would be barred from issuing a notice to remove a tenant, known as a Section 21 notice, when a tenant makes a written complaint to the landlord about conditions in a property. This would make it almost impossible for a landlord to regain possession of their property if the tenant is committing anti-social behaviour or failing to pay their rent at the same time.”

    Perhaps the RLA should read section 7 and Schedule 2 to the 1988 Act (with particular reference to grounds 8, 10, 11 and 14)? It’s not even as if the mechanism for fault possesion comes after section 21!

  5. 1 the Deregulation bill is not ” just headed to the Lords before Third reading in the Commons”. The bill has been thro all the commons stages and has had 2 days of the report stage in the lords. The 3rd (?and last) day of the report stage is on weds next week 11/02/15.

    2. you make very good points that
    a an s80 EPA notice should be covered
    b a request in writing to do works not being a formal notice should be covered
    also c a prelim notice by tenant of EPA proceedings should also be covered

    3 someone should use contacts with peers to get amendments tabled to cover this.

    4 there is an amendment tabled for the deposit scheme (the bill’s proposed amendments are currently found in clause 30)
    Clause 30

    BARONESS HAYTER OF KENTISH TOWN
    46 Page 24, line 39, at end insert—

    “(a) after section 213(10) (requirements relating to tenancy deposits)
    insert—
    “(11) Where an order made by the appropriate national authority
    under subsection (5) requires, in connection with the
    tenancy in respect of which a deposit has been paid, the
    provision of the name, address, telephone number, and any
    email address or fax number of the landlord, the name,
    address, telephone number, and any email address or fax
    number of any agent who is holding the deposit on behalf of
    the landlord may be provided instead.”;
    (b) ”

    5 Lord Wallace of Saltyre has tabled a further amendment to the bill

    After Clause 29
    LORD WALLACE OF SALTAIRE
    45A*
    Insert the following new Clause—
    “Tenancy deposits: non-compliance with requirements

    (1) Chapter 4 of Part 6 of the Housing Act 2004 (Tenancy Deposit Schemes) is
    amended as follows.

    (2) In section 214 (proceedings relating to tenancy deposits), in subsection (1)
    after “shorthold tenancy” insert “on or after 6 April 2007”.

    (3) In section 215 (sanctions for non-compliance)—

    (a) for subsection (1) substitute—

    “(1) Subject to subsection (2A), if (whether before, on or after 6
    April 2007) a tenancy deposit has been paid in connection
    with a shorthold tenancy, no section 21 notice may be given
    in relation to the tenancy at a time when the deposit is not
    being held in accordance with an authorised scheme.
    (1A) Subject to subsection (2A), if a tenancy deposit has been
    paid in connection with a shorthold tenancy on or after 6
    April 2007, no section 21 notice may be given in relation to
    the tenancy at a time when section 213(3) has not been
    complied with in relation to the deposit.”;

    (b) in subsection (2A), after “Subsections (1)” insert “, (1A)”.”

    thanx for all your blogging
    n

  6. Oh dear.

    Applicant goes to council, housing options officer asks if there is anything wrong with property, housing options officers asks to see all relevant documents including gas safety certificate. Housing options officer on being informed that there is ‘some disrepair’ will immediately send out Private Sector Housing Officers (who are in dwindling supply as it is)

    There is something wrong with it, so said notice is served.

    Boom, council prevents homelessness (or in the reality defers it for six months). Client probably unhappy, landlord definitely unhappy. Now we have two parties unhappy, having to accept their now defunct relationship together, council happy as have ‘prevented homelessness’ when in reality we have not, we have just deferred it.

    Messy, this parlour trick will be used up and down the land without doubt…often.

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  8. the legislature will have to take great care and precision over fixing when these new laws are going to take effect and wether and if so which are going to be retrospective

  9. Understood Giles, but I can also envisage some ‘dispute’ (both ways to be fair) on whether the letter was served/received or not, which will make it arbitrary, and could make this somewhat of a fact finding exercise. In any event, this is ‘muddy waters’ time…

    Some councils may see it as a way of preventing homelessness as not every case will go to court to get tested, and not every landlord will take legal advice to establish what they can or cannot do.

    • It is current standard practice in Env Health depts (never wishing to undertake unnecessary work) to ask a tenant if they have raised the disrepair with the landlord – and if not, to do so before LA involvement except in an emergency. I would expect that standard advice will be issued by CIEH and housing advice agencies for the tenant to firstly issue a letter with evidence of service. Depending on the nature of the alleged disrepair, the EHOs may:-
      1. decide to inspect regardless of S21
      2 contact the landlord anyway
      based upon any pre-existing knowledge of the landlord or the property.
      The LA will continue to have obligations under HA 2004 independently of any S21 issues. In any event an LA is not under any obligation to issue formal notices if it does not consider it reasonable to do so, subject to the relevant regs, where there is a specific duty to do so.

      Hopefully it will be possible to have the two procedure working in parallel. Like any legal procedure evidence will be necessary but the availability of a suspension of a S21 will provide time for the repair need to be carried out and also for suitable intervention in the landlord/tenant relationship to sustain the tenancy.

      If homeless units and EHOs work together it should have the effect of continuing a tenancy, improving the physical standard of property generally – even if at a later date a tenant moves elsewhere but without the immediate threat of eviction or continued disrepair.

  10. Seems to me that these proposals, unlike Teather’s proposals, are unlikely to have much impact on decent landlords: they require that the relevant authority has issued a notice in support of the tenant’s claim, thus keeping vexatious claims out of the courts.

    The main thing that now worries me is that it would be impossible for a landlord to issue a S21 for posession at the end of a fixed term of 6 months, because of the proposal that a S21 notice cannot be issued in the first 4 months of a tenancy and the requirement for 2 months notice.

    I also think that there should be a period after the issue in the relevant notice has been properly addressed in which a S21 cannot be issued. This is because research has shown that people will punish others who they feel have done them wrong even if it is not in their best interests (voids; costs to agents, etc). 3 months should be a sufficient cooling off period.

    • The requirement of a certificate issued by a LA was in the original proposals put forward by Sarah Teather.

      I am confused by the meaning of your second paragraph. It does not make sense. A landlord will be able to issue a S21 after 4 months; it will expire after a further 2 months; that is at the expiry of an initial 6 month term, providing that a disrepair claim has not been registered and any deposit has been protected and the appropriate prescribed information has been issued.

    • Sarah Teather also had (paraphrased) “tenant has complained and LA is thinking about it (or, possibly, has not yet got around to thinking about it)”.
      That was the “rogue tenant’s charter”.
      That is not in current proposals.

      It may, just, be possible to issue a S21 on first day of fifth month of the tenancy giving notice for posession after the last day of the sixth month of the tenancy and be giving two months notice (I do not know the interpretation the law puts on the notice period).
      However, if that is the case then it gives exactly one day on which such notice can be given: that seems unreasonable, and I can’t see many letting agents delivering S21 notices on a Sunday.

    • Further to above post, it is my understanding that notices delivered after 17:00 Friday or on Saturday/Sunday are deemed served on the following Monday making it impossible in some cases to serve a valid S21 requiring posession at the end of the fixed 6-month term even if the 2-month notice period could be met in general.

    • I think that is a fair point. On a strict reading of the draft clause, there would literally be a specific day for service of a s.21 giving two months notice before the end of the fixed term. On the weekend thing, it could be that a s.21 could be sent a couple of days earlier, to give the correct date of service, but not ideal. This may be why the provisions on a s.21 not having to end on a period of the tenancy, and the ‘unexpired’ rent repayment to tenants provisions are there – to catch a few days overspill. But still inelegant.

      And, frankly, I’m not sure what that provision achieves in terms of certainty for the tenant, which is the expressed aim.

    • I believe the provision of s21 is that it is to be given which is different to service.

      However no doubt they haven’t put their minds to how this will work and mess it up like the deposit scheme.

      I personally look forward to the legal fun and games to follow

    • Re S21 not having to expire on a period of the tenancy:
      a) that has never been the case for a notice served in the fixed term..
      b) recent case law (High Court) means it also does not apply to a tenancy that started with a fixed term and then became periodic. That means it only applies to tenancies that have been periodic from the outset.

  11. I have read with interest and I would be interested to know whether this legistaion with all its deposit changes, explanantions and guidance from the DoJ has been actioned? or has the late timing of the document meant it will not be enacted until well into the next Parliament in some new form?

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  13. What are your thoughts when an improvement notice is revoked by the council because the landlord has complied with the conditions? Are they still going to be prevented from serving a Section 21 notice?

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