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.