03/08/2015

The Something Must Be Done Bill, Calais edition

The Rent Act 1957 introduced the requirement for a court order for eviction from a tenancy. That is 58 years of eviction without due process of law being unlawful. But no matter, for Something Must Be Done to deter people who have spent months on perilous journeys across continents and are currently sleeping under an old tarpaulin. Nothing is more likely to make such desperate, traumatised people turn their faces from England, pick up their tarpaulins and walk away into France than knowing they will not get the security of occupation offered by Housing Act 1988 or Protection from Eviction Act 1977.

And that is just one of a whole series of wizard wheezes announced by the Communities Secretary (and Home Office) today. Here is the whole lot – minus, of course, any of the crucial details.

Measures in the forthcoming Immigration Bill will go further, and will enable landlords to evict illegal immigrant tenants more easily, by giving them the means to end a tenancy when a person’s leave to remain in the UK ends – in some circumstances without a court order.

This will be triggered by a notice issued by the Home Office confirming that the tenant no longer has the right to rent in the UK. The landlord would then be expected to take action to ensure that the illegal immigrant tenant or occupant leaves the property.

This, of course, runs roughshod over centuries of land law, in which an estate in land in wholly distinct from any mere personal characteristic. Uncertain terms, contractual periods that are potentially no such thing, and of course, eviction on the say so of the Home Office, who always get things right. Where is the route of appeal? Where is the possibility for scrutiny by the Court? Hard to say until the detail becomes clear, but there is enough here to make it likely that the legislation will be a complicated mess.

I spent an idle few minutes earlier today considering how many ECHR rights such legislation might breach. It became easier to count the ones it didn’t. Assuming that we haven’t actually been taken out of the Convention by the time this enters law, ‘proportionality’ is going to have do an awful lot of stretching to cover breaches of P1A1, Art 8 and Art 6. Incompatibility beckons…

And there I collapse, it is impossible to satirise, or even mock, such a catatonically dim-witted, legally illiterate, wholly unnecessary, thoughtless proposal.

But of course, it doesn’t end there. Yes, ‘right to rent’ will be extended nationally. Even though the evaluation of the West Midlands pilot hasn’t been completed and despite early evidence that British citizens without a passport were being turned away by landlords. What chance would a Zambrano carer have?

This is an odious law. We have always said so. Now we will have a chance to see just how bloody stupid it is on a national scale.

And then ‘rogue landlords’ (but not as we know them).

There will be a new criminal offence targeted at unscrupulous landlords and agents who repeatedly fail to conduct the “right to rent” checks or fail to take steps to remove illegal immigrants from their property. These landlords may face a fine, up to 5 years imprisonment and further sanctions under the Proceeds of Crime Act.

But then again, the NLA welcomed ‘stronger eviction powers’, their main concern being that these immigrant types, once they lost their right to rent, might turn out to be dangerous to, um, landlords, with Richard Lambert, NLA chief exec saying:

“I do worry in the case of an illegal immigrant you possibly have a despairing person in a desperate situation. That often leads to people doing very desperate things. Who knows? Barricading themselves in? There is the risk of defending themselves with all the force they can muster. It could put people in potential danger.”

Yes, Richard, that is the real risk of this proposed legislation. How could we have overlooked it?

The DCLG continue:

Forthcoming legislation will create a blacklist of persistent rogue landlords and letting agents, helping councils to focus their enforcement action on where it is most needed, and keeping track of those who have been convicted of housing offences.

And new measures will prevent a landlord or letting agent from renting out of properties if they are repeat offenders.

‘Rogue landlords’? In a remarkable redefinition, it appears that a rogue landlord will now be someone who doesn’t evict their tenants without getting a court order.

But I suspect that the PRS landlords will not be remotely happy at the prospect of a 5 year prison sentence for messing up immigration status checks.

The ‘blacklist’? (perhaps a slightly unfortunate term in the context of anti immigrant legislation) – well we will have to wait and see what is involved there. Given the lengths that the MoJ went to to resist a FOI request for details of prosecutions of landlords, this could be interesting, so long as it is not restricted to breaches of ‘right to rent’.

The other announced measures are:

  • a new tougher fit and proper person test for landlords of properties that have to be licenced, to ensure they do not pose a risk to the welfare or safety of tenants
  • extending Rent Repayment Orders so local authorities can claim back rent payments from landlords who abuse the Housing Benefit system by failing to ensure the property is maintained to a good standard
  • enabling local authorities to issue penalty notices for certain civil offences, with the money retained by the council and used for housing purposes
  • permitting the sharing of Tenancy Deposit Protection data to help councils crack down on rogue landlords who knowingly rent out unsafe and overcrowded accommodation
  • enabling landlords to recover abandoned properties more quickly without the need to go to court.

Again, the devil will be in the detail. ‘Penalty notices for certain civil offences’ is downright odd, as a) these are civil offences and b) councils aren’t the claimant in civil matters.

Sharing of TDS data will, I have no doubt, be with HMRC as well as councils. Landlords and agents take note.

Easier recovery of ‘abandoned properties’ by landlords? Hmmm. Again, devil in the detail, but unlikely to be good.

At a time when housing law needs a serious reconsideration overall (and Scotland and Wales have gone some distance in that regard), I despair at this petty, pointless, vicious, knee-jerk pandering. This atrocious Something Must Be Done legerdemain. And we know there is more to come…

 

 

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.

7 Comments

  1. Ian

    -> Easier recovery of ‘abandoned properties’ by landlords? Hmmm. Again, devil in the detail, but unlikely to be good.

    MAY be a great improvement for landlord and tenants.

    At present, the legal process is very costly for landlords, with little real life possibility of recovering the cost from the tenant. There is also little real world risk to a landlord of ignoring the legal process and just changing the locks where there are signs that the tenant has left and the tenant owns enough rent to enable a counter claim.

    Therefore a lot of landlords just ignore the legal process.
    So a new process that works quickly and a lot cheaper may get used by a lot more landlords so improve real world protection of tenants.

    (This is often an issue when a tenant gets social housing, and the first thing the private sector landlord knows about it is when the rent is not pay. If the social housing sector took responsibility of ensuring that the private sector tenancy had ended before handing of the keys, this could be solved in no time…)

    Reply
    • Giles Peaker

      Hence devil in the detail. It is possible to conceive of an efficient and fair mechanism, with suitable safeguards. (And safeguards are needed – the number of illegal evictions where the LL claims ‘I thought it was abandoned’ as an excuse is far from negligible). The question is do we have any confidence in DCLG to actually come up with such a mechanism?

  2. Chris

    Coupled with the new Absolute Ground for Possession for ASB, interesting times. Would like to hear from anyone who has found a defence for that as I’m facing at least 2 of these cases…Equality Act? Public Law? Proportionality?

    Reply
    • Giles Peaker

      Art 8 proportionality would certainly apply, assuming there is a case. PLD should apply too. Equality Act I guess, where arguing possession claim is unjustified discriminatory act so unlawful.

  3. Nile

    Thank you, there are some concise opinions and explanations of the law here, and that’s always useful for the nonspecialist.

    Nevertheless, I would urge you to beware of missing the point, for this is politics as well as law; and a policy is a political statement, which may be more of a smokescreen than a substantive statement of intent.

    What if the apparent intent – a desire to ‘crack down’ on the menacing hordes of dehumanised migrants – is an opportunist grab at a return to pre-1957 land law, a desirable outcome in and of itself?

    Desirable to whom, and for what ends, is another discussion entirely; perhaps a little too political for a legal forum.

    Inevertheless, I would remind you that the ongoing ‘reforms’ elsewhere, to funding arrangements for housing, employment and criminal law cases, have very little to do with their stated policy goal of efficiency: they will save no money at all, and all who seek to rebut the policy by engaging in those terms of argument are waving their hands at smoke.

    Meanwhile, behind the smokescreen, these reforms are a coherent and effective social agenda: so, too, a rebarbative degeneration of the law to arbitrary eviction, whether it is cloaked in the smoke of racist dog-whistles about ‘migrants’, or offered as a better deal to honest landlords.

    Reply
    • Giles Peaker

      Hence my first paragraph.

  4. Paul Stockton

    DCLG have published a “technical discussion paper” on the non-immigration-related changes. There is no detail at all yet on the immigration proposals. This suggests to me that DCLG and HO lawyers and policy officials are struggling with how to make this workable. The fundamental problem is that immigration status is personal to an individual whereas the whole panoply of landlord and tenant law, with its protections, is essentially part of land law, and is about who is entitled to occupy land. A possession order, for instance, is just what it says: a declaration that a landlord is entitled to exclusive possession of land previously occupied by someone else. In this immigration situation an individual may lose the right to rent but other occupants under the same tenancy agreement may still have the right. In those circumstances the landlord can surely not be given the right to obtain possession. What would be needed would be an order which dealt solely with the individual who had lost the right to rent. The nearest parallel would not be conventional landlord and tenant law but the orders which are available in family law to exclude individual occupiers who would otherwise have a right to stay in a particular dwelling.

    To me that then raises the question: why should it be the landlord’s job to obtain such an order? It isn’t in family law. What happens if the landlord says he can’t afford the cost of the proceedings? What if he makes a mess of the process and the court refuses the order? What if the court gets it wrong and wrongly refuses eviction? If the requirement to apply for an order is triggered by a notice from the Home Office why shouldn’t the HO do the job itself and have power to apply for the eviction order? And how exactly will this HO notice work? How will it know who the immigrant’s landlord is?

    I suspect this is all about deterrence at the best and a show for the public at the worst. Given how the HO struggles to deal with even the most basic features of immigration control it is difficult to see how they could really administer a scheme like this, festooned as it must be with complex non-immigration law.

    Reply

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