Cat amongst the pigeons

In an interview in the Independent, Jeremy Corbyn has apparently announced that it will be Labour policy to end ‘no fault’ private sector evictions:

Asked whether abolishing the “no fault” evictions would be part of the next Labour manifesto, he replied:  “Absolutely. Absolutely. I am very committed to housing and dealing with homelessness. I think it’s a moral litmus test for the country: do we just put up with so many rough sleepers or do we do something about it.”

“The stress levels on people concerned is incredible. I get it all the time from constituents because a third of my constituents are private renters. I am very determined to bring some order and stability to their lives by longer tenancies and eviction that can only be there for good reason rather than just what can be retaliatory eviction.”

I say ‘apparently’ because this was it seems thrown in as an answer to a question, and, unlike longer tenancies, it has not been floated as Labour policy before.

But let us take it at face value for a little devil’s advocacy and assume that Labour would seek to end Section 21 possessions, as has happened in Scotland. I am fat and spent 14 hours on motorways over christmas, so I will be mischievous.

So, a proposed end to section 21?

There would be the predictable shrieks of outrage and doom from some/many private rental sector landlords – the end of the private sector, we’ll all sell up, mass homelessness etc. etc..  The ability to gain possession of the property on a no fault/no ground basis has certainly been a touchstone of the PRS since 1989. And yet…

In a conversation with various landlords after the LGO said that rising rents were causing homelessness amongst working people such as nurses, I was repeatedly assured that no reasonable landlord evicted people to put the rent up. (In fact I was told landlords didn’t put the rent up on renewal tenancies either, but that was so obviously wrong that we will pass over it in silence.) The various landlords variously insisted that possessions and evictions only happened for a good reason. Rent arrears, property damage, landlord wanting to redevelop and so forth.

This doesn’t quite square with the rise in ‘end of a private tenancy’ being the reason for homelessness from 4,580 from 2009-10 to 18,270 in 2016-17. These are the figures for the accepted statutory homeless households, so any underlying reason for eviction was not the tenants’ fault. Councils would have checked with the landlord and given intentional homelessness decisions if that was the case.

According to the DCLG’s own analysis, 63% of PRS evictions are because the landlord wants to return to live in the property, or sell with vacant possession. But still, let us take the landlords’ assertions at face value – there are no evictions without a good reason.

There is, of course, a process for eviction for reason. This is via service of a section 8 notice and a possession claim on one of the grounds in Schedule 2 Housing Act 1988. Those cover, amongst other things: rent arrears, other breach of tenancy, landlord wanting to return to live in a property they had lived in before, requiring the property to redevelop it, nuisance behaviour, tenant causing deterioration to the property, possession by mortgage lender, and so on.

Some of those grounds are mandatory (a possession order must be made if the conditions are met), others discretionary. All of them have a shorter notice period than the two months required for a section 21 notice.

Putting aside for the moment any question of whether those grounds cover all situations that may be required, what is the problem with using the section 8 procedure if evictions are ‘for reasons’? Why do landlords insist on having section 21 to use in those instances?

The answer appears to be convenience, not necessity or principle.

Reasons for eviction, via section 8, have to be evidenced for a possession claim. Rent arrears have to be shown, conduct demonstrated, redevelopment plans provided, etc. etc..  This is obviously a terrible burden.

And then there is the possession process. A section 8 claim will be inevitably be set down for a hearing, unlike an ‘accelerated possession’ claim based on a section 21. If the landlord has ticked all the requirements to be able to serve a s.21 notice, a possession order will be made on the papers, but a section 8 claim will be listed for a hearing, even if just a brief 10 minutes in the list. This, given the current state of the courts, means a degree of delay.

If the tenants have some form of defence, or counterclaim, or the evidence isn’t there, that hearing will almost certainly be adjourned off to a later date and longer hearing. This may be weeks, even months later, given court pressures.

Lastly, some landlords fear the court having discretion (on those grounds where there is discretion), as a suspended possession order with conditions may be made, rather than an outright order granting possession.

These objections are a mixture of the reasonable and the unreasonable. It is certainly true that the state of the courts, underfunded, understaffed and increasingly closed, means that possession proceedings take far longer than they should or need to. You can add in a further wait for a court bailiff appointment. In those circumstances, it is understandable that landlords would turn to the more certain and probably quicker section 21 claim process.

However, objecting to the chore of having to provide evidence of asserted reasons for requiring possession is less sympathetic. Of course allegations have to be proved. If you are alleging breach by the tenant, or a change in your circumstances or plans to merit possession being given, this is not going to work simply on your say so, nor should it.

(As mentioned above, landlords always tend to assert that evictions are largely due to tenants’ breach, arrears, etc. when most evictions are due to the landlords wanting the property back. The trouble with courts is you don’t get to just assert things…)

The court’s discretion? Well, that was what parliament decided. Landlords might find it objectionable when things don’t go wholly their way, but flexibility for the court in certain circumstances was what the legislation set out.

On this and on their own account, it appears that landlords’ objections to losing section 21 are largely based on the failings of the court process and administration. This is not a principled or legislative objection, though no-one can deny that the courts are in a state of some collapse and are in desperate need of more funding and staff. In principle, if the courts were adequately funded and efficient, this objection would fall away.

But then we come to the current elephant in the room – landlords wanting vacant possession for sale. This is part of the largest reason for landlords seeking possession according to DCLG, but there is no corresponding ground for possession under Schedule 2 (unlike a returning occupier landlord). Should there be? Should a trade off for losing s.21 be a new ground of possession for ‘a genuine sale’?

There is a balance to be struck here, between the landlords’ desire to maximise sale price (after all, a property with a sitting tenant is still certainly sellable), and the tenant’s security of tenure. Should all of this come to pass, it will be very interesting to see what arguments landlords will muster for a right to evict to be able to sell with vacant possession. A right to maximise returns on a capital investment by people losing their homes will not necessarily be an attractive argument…

And then, what other arguments are there for retaining section 21? Aside from the current condition of the courts?

There is the further plus in abolishing s.21, that it would make retaliatory evictions much, much, much harder. (And yes, before anyone leaps in, they certainly do happen. We see a lot). The current provisions, requiring as they do an improvement notice or emergency remedial notice from the council EHO, are something of a chocolate teapot. Remove s.21, remove the ability to evict with no reason…

Mind you, I am far from convinced that ending s.21 would make any significant difference to the homeless figures, even if eviction for sale was not an option. The factors driving the increase in homelessness are complex, including LHA caps, falling real terms incomes, lack of stock supporting rent increases, and lack of social housing. The rental market is broken, but removing s.21 is hardly a solution in itself.

Assuming that this was not a throwaway remark by Corbyn – and that remains a question – it is going to be very interesting to see how this plays out.

 

 

 

 

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, Housing law - All, Possession.

52 Comments

    • That was before ASTs in general. Who knows – a question for the lenders. But they have the comfort of the mortgage possession ground, which they didn’t before HA 1988. I doubt it would be a huge factor.

  1. The main problem I’ve encountered with tenancies is that after the initial 6 month contract, landlords (or the letting agents) refuse an additional fixed-term contract, instead moving to a rolling monthly tenancy. Even if your relationship with them is good, this creates an underlying fear and feeling of insecurity. I think a minimum of three month’s notice should be required if the landlord wants the property vacated on a “no fault” basis.
    It probably isn’t necessary in most cases, but there should also be some protection against using exorbitant rent increases to force tenants out. Maybe something like a percentage cap on the amount rent can be raised by in a year could work.

    • To be honest, I’ve not encountered many landlords who do want a statutory periodic. Usually it is a renewal tenancy with a fresh fixed term.

      Caps on rent increases during a tenancy are a whole other issue. Also currently up for grabs.

    • ‘To be honest, I’ve not encountered many landlords who do want a statutory periodic. Usually it is a renewal tenancy with a fresh fixed term.’

      Then maybe you need to get out a bit more.
      Standard advice on landlord forums.
      -Letting agents generating fees however…

    • I read the landlord forums. Usually a fresh fixed term with a rent increase… On the rare occasions I’ve seen anyone talking about a section 13 notice, they have usually got it wrong.

    • Anecdotally, I’d say it depends on the area and circumstances. Landlords renting to joint tenants who aren’t families (so students, young professionals, people renting accommodation for their work etc.) tend to be quite keen on renewable fixed terms. Particularly with student properties where you can’t guarantee finding a new tenant on short notice if one of the joint tenants wants to leave.

    • Oh bless your cotton socks, Tessa’s site is not a landlord forum. And here is the full quote from Tessa’s post, which you unaccountably omitted:

      A renewal can be a good idea, as it gives both landlord and tenants security for a further period. It is also a good opportunity for the landlord to increase the rent.

      However, sometimes they are not a good idea. If the tenant’s plans are uncertain for example, and he thinks he may be posted to Aberdeen for his work, he should not sign a new 12 months fixed term!

      Landlords are best advised to allow a tenancy to run on as a periodic tenancy if the tenant is proving problematic, as then if the situation deteriorates they will not have to wait until the end of the fixed term to evict them from the property.

    • “Tessa’s site is not a landlord forum”

      A bit harsh, I think it is as good as it gets.

      However, where is your link to the landlord sites giving the advice of “Usually it is a renewal tenancy with a fresh fixed term.”?

      Here is another link to be going on with, this time from Tom’s* site-

      https://www.landlordzone.co.uk/information/fixed-term-periodic-tenancy

      When the initial fixed-term ends many landlords prefer to allow the tenancy to lapse into a statutory periodic one, rather than have the tenant sign up for another fixed-term.

      *Apologies for the pretentious and pointless name-dropping.

    • Tessa’s site is excellent. Tessa is also a good friend and provides hosting for this site, for which we are very grateful. Point was, it is her site and not a landlord forum. Her post also says the opposite of what you said it said. And now you have again selectively quoted a page from another site which also goes on to list the disadvantages of a periodic tenancy and then says this

      In all cases, whether you as a landlord always allow tenancies to lapse into periodic ones, or you like to renew the tenancy agreement for a further fixed term, perhaps with a rent increase, it is a matter of choice and business judgement.

      I think this is a pointless exchange. It ends here.

  2. Buy To Let was the trade name of a specific loan product introduced by ARLA in response to the AST in around 1989. A condition of the loan was that the property was let through an ARLA agent, and until then there were no alternatives. As Giles says – times have changed, it is no longer an ARLA product, and it could well be that lenders will be happy to lend without the security of a S21, after all recent deposit and retaliatory eviction legislation has watered down the S21 catch-all nature.

    However, given the recent changes in the loan market, where loans for property purchase have become ever more difficult to obtain, isn’t it more likely that the loss of the S21 will be the end of BTL just as it was the beginning?

  3. Giles,

    Your article carries the tone that Landlords want to evict tenants. Nothing could be further from the truth – even bad landlords want good tenants who stay forever, and good landlords who follow eviction procedures spend a lot of money trying to ensure that they only get good tenants (even to the extent of leaving property empty lest it fall in the hands of a bad tenant).

    Whilst the motivation (and profitability) for not evicting a tenant is so clear that it hardly needs stating (renting is what we do), there is some suggestion that there are other motivations to evict good tenants. The best way of dealing with this is to identify and address those motivations – the only one that I can see is the requirement of lenders for vacant possession, this driven by the difficulty in eviction. Indeed the court system is so not fit for purpose that a typical contested eviction will take 6 – 12 months.

    Remarkably the best solution to the housing crisis may well be to make evictions easier, and remove them from the court process. Bad Landlords thrive in a bad environment, if you want to replace them with good Landlords you need a better legislative framework.

  4. Landlords will evict good tenants, for example if they can rent to someone else able to pay more. To say nothing could be further from the truth is simply wrong.

    The number of times I’ve had conversations with landlords or agents who seem offended that they have to go through court is in the hundreds. It’s my property I can do what I like isn’t an uncommon remark.

    Out of curiosity, where would you have evictions go if taken away from court process?

    • Courts, tribunals, trial by combat, … doesn’t really matter. What landlords who go through the court process compains most about is how long it take. A nation wide average of 41 weeks from claims to bailiffs, and that’s not including the notice period.

    • The concept of evicting one good tenant in order to rent to another good tenant for more is fantasy, the world of the PRS simply doesn’t work like that.

      I agree that ignorance among Landlords & Agents is remarkable, and can’t really be defended. From the other side of the argument the rules and decisions handed down by the correct legal system can be just as far from common sense and fairness.

      Trying to create a fairer system outside the existing legal system shouldn’t be too difficult given how badly the existing system serves society. There already exist arbitration services for various industries, and indeed there is already a Property Ombudsman. The main thing lacking is a widespread recognition of the role of an unfit legal system plays in the housing crisis.

    • The property redress schemes (and indeed ombudsmen) are about process – they deal with complaints about service. They are not about outcomes. They are supremely ill-equipped to determine issues of contested fact.

      Arbitration schemes, like the tenancy deposit ones, are better at disputed fact, up to a point and assuming that all the evidence is there, but – and here is the rub – the landlord would still have to provide the evidence. What is more,given the scale of work involved, someone would have to come up with a lot of money for the setup and admin if it was to be any quicker.

      That applies to any alternative. Even the ‘Housing Court’ currently being mooted by the CLG Minister. You want it to be easier and more efficient? You are going to have to pay for that.

      What you aren’t going to get, unless there is a huge change in the law, is some process that deals with possession cases outside of a curt or tribunal structure. These are legal rights – of both landlord and tenant. It is not a complaint about poor service from your bank.

      I just *adore* the suggestion that the current legal system plays a part in the housing crisis. How? Just how?

    • ‘Landlords will evict good tenants, for example if they can rent to someone else able to pay more.’

      Why would they go through all the hassle f eviction when they could just serve a section 13 rent increase notice?

  5. A smashing idea if you’re an affluent Islington luvvy.

    Not so clever if you’re on benefits in Mansfield with a chequered credit history.

  6. Section 13 notices don’t magically enable existing tenants to pay an increased rent.

    If you can charge more and others will pay it, then evicting the current tenant to get others in is standard practice

    • ‘evicting the current tenant to get others in is standard practice’

      No it isn’t.
      Although bad tenants claiming they were evicted so the landlord could charge a higher rent is standard practice.
      Using a ten month section 21 eviction process in order to charge a higher rent just doesn’t make sense.

    • Even by the current creaking state of the courts, 10 months for an accelerated possession claim is an exaggeration. 5-6 months including notice, quite possibly.

    • Tends to work if the tenants move out on the initial notice. Obviously they don’t *have* to, but when the alternative is the not-so-tender mercies of a part 7 application, most tenants would be best advised to look for somewhere else before it gets to court.

      Scrapping s.21 probably won’t do much to solve street homelessness at all, but honestly if it changes cultural attitudes towards renting so that being a landlord is seen as an inherently years-long business venture with the attendant risks and training requirements, rather than a way for anyone to earn a bit of short-term cash on the side when they can’t sell a property immediately then that’s probably a more healthy perspective.

      Of course it’s all up in the air at this point since there’s not really anything specific to go on at this point.

  7. One issue in a HMO (rented per room) often the other tenants will tell the landlords they will move out due to one tenant for example never doing his washing up. The other tenants are not willing to make formal statements as they have to live with the “bad” tenant while the court process is going on. (Likewise I have come across cases when one tenant is making sexual comments to the other tenants, but they are not at a level the police will take action.)

    Therefore for HMOs rented per room with shared facilities, there needs to be a system that works fast and does not require a high level of evidence. Even if there was never any court delays etc, section 8 does not work. This is bad enough that landlords often bribe the bad tenant to leave; including agreeing what reference will be given! The bad tenant then moves into the next HMOs…..

    Then we have rent arrears, the fact that tenant can pay up just before the judgment and the landlord never has any real chance of recovering the costs makes using S8 a large risk compared to S21. The cost of legal support for the landlord is a real issue, often make worse by the court system being so dysfunctional so as to put up the costs of the complete process.

    Personally I will no longer rent to anyone who is not a good target for an attachment of earning order or has a very solid home owning home owning guarantor, hence the removal of S21 would not affect me much for single lets. (But it will be yet another reason not to risk “benefit tenants”.)

    But I would be happy if there was a £500 court charge to serve a S21 (not reclaimable from the tenant) provided it covered all court costs etc if the tenant does not leave. Some of this £500 could be given to councils to help with rehousing. If the landlord had to provide the court with a copy of all the paperwork as the time of issuing the S21, the tenant could be required to put in any defense with 28 days, so allowing the complete court process to complete before the 2 months is up. (The tenant should also be allowed to leave at any time within the 2 months, with a refund of advance payment of rent.)

    As to the right to evict on sales, without that, lots of people who rent a home out because of moving for work etc, will just leave their former home empty, as they did before S21 was introduced.

    It is easy to fix the homeless figures, just build lots more homes in areas with jobs and move jobs to areas with empty homes………………….. (As soon as all tenants are able to choose their landlords, the market will sort out most problems.)

    • Ian, your proposal about s.21s – this amounts to saying you would be happy to pay less for more to be done for you. I’m sure you would, but it isn’t going to happen. (Though you would also not be able to reclaim that £500 from the tenants if they left at the expiry of the s.21 period). But you do not grasp what notice means. You cannot require a defence before a claim has been issued, but you can’t issue a claim before you have a right to possession. And you don’t have a right to possession until the expiry of two months notice.

      When I described in the post that landlords had only justified s.21 to me in terms of their administrative convenience, because of the state of the courts, you are just one more example of that, albeit taking it a step further in demanding that your convenience trumps the basics of the law.

      It is not enough to say ‘s.8 does not work’, even outside the delays. What you describe is not a breach of tenancy. Wanting to get someone out because you don’t like them would be exactly the kind of use of s.21 that is causing people to target it. And you wonder why I went on in the post about the hopeless approach to PR many landlords seem to adopt?

      The rent arrears issue – I’m lost. The tenant pays up before the hearing date, so you don’t get ground 8. You may still get ground 10 or 11, depending on the history. But a) you’ve got the rent, and b) unless your tenancy agreements are lacking, you can add the court costs to the rent account, even assuming that aren’t rolled into payments on a suspended possession order.

      On the ‘former home’ thing – this is a genuine question. Should properties be let by accidental landlords just waiting a bit before they sell? If 3 year fixed terms become a thing, wouldn’t they be scuppered anyway?

      Agree on that being one aspect of fixing homelessness. Just one, though, just one.

  8. David Trewick,

    To give you a feeling for why I think that your comments bear no relation to real life I will give you a real life example – one of my tenants who chose to use his housing benefit to live off (mainly foreign travel). He used pro bono lawyers to extend the eviction process which finally took 9 months. I was able to trace him, discover that he is actually quite wealthy (net assets of £600K (50% of a £1.2m house) that I know of, but I believe that there is considerably more). The debt is £30K (including interest) & the taxed costs to the stage of a charge on his property is £40K. Interestingly most of the £30K was run up whilst he lived somewhere else, his daughter used the property as an occasional brothel, but his lawyer insisted that he was not yielding possession.

    Now who do you think is currently paying that £70K?

    1) Myself?
    2) The Government through tax relief?
    3) My other good tenants?

    Without getting sidetracked into the damage that bad tenants do to good tenants, those numbers are not unusual for an eviction of a tenant who doesn’t go on receipt of a S21. The business model of evicting in order to let out at a higher rent just doesn’t stack up.

    • So why not use s.8 and ground 8, 10 and 11, rather than s.21 in those circumstances? If the arrears were as you say?

      I have to say there are a number of things arising from that story.
      Who does your tenant referencing? Because apparently they weren’t very good…
      Nobody gets ‘pro bono’ lawyers for a 9 month possession claim.
      I presume this tenant is facing benefit fraud charges, if your account of his assets is correct?
      You apparently have a charging order on a property of his. Great, sounds like your solicitors know what they are doing, now get an order for sale, recover your money and costs.

      From your account, you were done over by a fraudster. That is not a good thing to happen, and it is good that you actually have secured a means of recouping the losses through the legal system. I also have a lengthy story of a deeply devious (litigant in person) tenant that I hope to tell soon. He really played on the delays of the court system, and still does.

      But asking the legal structure and system to protect you in advance from a deliberate fraudster is, if you will pardon me saying this, quite ridiculous. It is like blaming the police for letting you be hit by a drunk driver.

      The legal system and the law is not here to minimise your risk in advance. It cannot be.

  9. “Giles Peaker
    29/12/2017 at 7:09 pm
    10 months for an accelerated possession claim is an exaggeration. 5-6 months including notice, quite possibly.”

    So not the ‘2 months eviction on a whim’ then?

    • Do re-read the post. Charitably assuming you have. While I have no idea who you think you are arguing with and about what, thank you for completing my bingo line of anticipated responses.

  10. “Giles Peaker
    29/12/2017 at 11:15 pm
    Do re-read the post. Charitably assuming you have. While I have no idea who you think you are arguing with and about what, thank you for completing my bingo line of anticipated responses.”

    No!
    Thank you Guvnor!
    Having a toff like yerself explaining the batshit reasons for scrapping section 21 in simple layman’s bingo terms has been a really convincing argument.

  11. “You really didn’t read the post did you?
    Goodbye from this, comprehensive boy.”

    A teeny bit condescending
    -but I knows my place.
    Goodbye.
    Your forum, your rules.

  12. Giles,

    One thing that screams out at me from this article, and the ensuing discussions, is the gulf between theory and practice.

    >======
    “So why not use s.8 and ground 8, 10 and 11, rather than s.21 in those circumstances? If the arrears were as you say?”

    Use of S21 because it should be quicker. 99 times out of 100 the tenant disappears, untraceable, the arrears written off to tax (hence my comment about who pays for bad tenants, the answer is mostly good tenants and the Govt.). The sooner you can provoke that to happen the quicker you can get the property refurbished and relet.

    Having seen the bickering about how long an eviction takes I thought I would look up my last eviction. This was handled entirely by a very efficient Solicitor:

    S21 Served 13th July 2016
    Bailiff Appointment 13th March 2017

    That one is my quickest.
    >======

    “Who does your tenant referencing? Because apparently they weren’t very good…”

    True. I used to support the Salvation Army and work with a social unit that they had for taking jobless & homeless people and restoring them to society. I would supply accommodation, and they would manage the tenant and their route back to employment. The beneficiaries were referenced as being in need of help, but having the potential to stand on their own feet. I took 6 tenants without deposit or guarantor, and received rent through housing benefit. The new government of 2010 removed funding from the Salvation Army unit which was closed and it’s employees except 1 were made redundant. Of the 6 tenants, 3 left under various clouds, one is our fraudster, and 2 deserved the opportunity that they were given. They are both currently struggling with the transition to Universal Credit. One has the support of a social worker from a charity, and the other justifies the whole exercise, being in gainful employment, and also running a scheme with the police to keep young unemployed out of crime.

    Just to refer back to a prior discussion – both of these remaining tenants are Periodic Tenants on the same rent as their 2009 tenancies.
    >======

    Nobody gets ‘pro bono’ lawyers for a 9 month possession claim.

    My guy did. He was represented by:
    http://www.goldsmithchambers.com/barristers/dr-anton-van-dellen/

    Who I imagine wasn’t qualified in 2014 when he took on the pro bono work

    He isn’t the only one because a year later I approached him about doing pro bono work for a tenant that I was helping and although he couldn’t oblige, he referred he to someone who did help:
    http://www.goldsmithchambers.com/barristers/stephen-willmer/
    >======

    “I presume this tenant is facing benefit fraud charges, if your account of his assets is correct?”

    I have never yet found anyone in local authority with the slightest interest in benefit fraud, in fact I would go as far as to say that when they advise a non-paying tenant to wait until a Bailiff evicts or they will have made themselves intentionally homeless, they are complicit in the fraud.

    On the occasions that I have spoken to housing departments about Housing Benefit Fraud the attitude has been that I am the criminal (presumably for charging rent).

    If you know better I have a number of fraudsters who I would be happy to pass on the details of.
    >======

    “You apparently have a charging order on a property of his. Great, sounds like your solicitors know what they are doing, now get an order for sale, recover your money and costs.

    From your account, you were done over by a fraudster. That is not a good thing to happen, and it is good that you actually have secured a means of recouping the losses through the legal system. ”

    Being a part of that system I am sure that you are aware that the costs awarded by the system fall a long way short of the costs that the same system charges. It’s difficult to see that as morally defensible.
    >======

    • Nick – the post was – as it said – somewhat mischievous. And I made very clear that the current state of the courts is indeed a serious issue for possession claims of any form (or virtually any civil cases that aren’t for millions of pounds). But s.8 and s.21 can be used together, in the same claim. Belt and braces.

      On your recent case, 8 months overall, 6 months from issue of claim to eviction – that is indeed slow on an accelerated claim. What was the biggest hold up? On figures like that, there is little practical advantage in s.21 over s.8!

      Your source of tenants is noted – and that is fair enough indeed. I tender my apologies. It seems that your chap did a number on everybody!

      Pro bono assistance – ah, I took you to mean representation throughout, rather than a barrister at points. Barristers don’t run cases, just the legal argument and court advocacy bits. This in itself gets murkier, as pro bono (or indeed direct access) is not permitted where legal aid is available, which suggests that your chap was not prepared to take the chance of lying to the Legal Aid Agency about his income and assets.

      I am genuinely surprised at the council on benefit fraud. Most are very hot on it these days. That is a wholly separate issue to the council homeless unit telling people to stay put until eviction (another bugbear of mine), as that is unconnected to any benefit issue. Housing departments are the wrong people to talk to about benefit fraud – the HB dept would deal with it usually (or DWP).

      On legal costs – it is not ‘a system’. Costs awarded are assessed by the court, but apart from court fees, they are not the court’s costs, those costs are of the party’s solicitors and counsel. Granted, there are frustrations in that. The current costs rules that deductions will be made for work that is not ‘proportionate’, even if it was completely necessary for the case, are mystifying. Your guess as to how something can be at once necessary and disproportionate is as good as mine. However, it is, as I’m sure you know, possible to have your lawyers’ bills to you assessed as well.

  13. No sensible landlord would ever use S8 as things stand now. It is just far to costly and unworkable and dangerous – ultimately the cost is passed to all decent tenants.

    It will not be “interesting” to see how this plays out. Learning from history seems completely absent in the reality-free post. A post at LZ summarises it well. It is less cats and pigeons, and more a case of buffoons and fantasists.

    “If you mean law abiding landlords, it would result in very, very, very careful tenant selection.

    Senior management relocating, foreign exchange professionals, property owners, solid asset owners.
    Or alternatives like holiday lets, student lets, Air BnB, corporate lets.

    In the highly unlikely event of it lasting, then law abiding landlords would revert to how it was before AST’s. Properties let only to family, or through family contacts, close friends, old boy net, favours in kind etc.

    Decent rental properties never went on the open market.

    Of course, non-law abiding landlords would be laughing. Remember Peter Rachman? Ever seen the pitiful state of lifelong tenancy properties that still crop up for sale at auction?

    Cynical populist politics aimed at those too young or daft to remember.
    -Or at those who choose not to remember. “

    • Abel – thank you for exemplifying my suggestion, that LL responses would be a) the sky is falling and b) the only justification for s.21 being put forward being administrative ease, in the face of an underfunded and collapsing court system. (And it is underfunded and collapsing, no argument there).

      The ‘this will be interesting’ in my post was in relation to how this proposal would be reacted to and what lines landlords would take to counter it (assuming it is actually a proposal, which is not at all clear yet). So far it has been entirely predictable. My sense, after the disaster of LLs approach to s24, is that LLs will need to up their game, either in the arguments that they made, or in the trade-offs and amendments they would seek as part of this.

      And the comparison with Rent Act tenancies just doesn’t work. There are many, many more differences between ASTs and Rent Act tenancies than just s.21.

  14. Giles Peaker 29/12/2017 at 7:09 pm said:

    Even by the current creaking state of the courts, 10 months for an accelerated possession claim is an exaggeration. 5-6 months including notice, quite possibly.

    The above is quite simply and jaw-droppingly and provably false – it makes me wonder what world you inhabit. I really like your blog, and can cope with your different point of view – but base your arguments on a foundation of truth and a little more headway might be made.

    • Really? I see them going through to warrant in that time. So not false. 10 months is the average time for all possession claims, not accelerated. The follow up from the person I was responding to had their last one at 8 months and 6 months from issue.

      Obviously it varies from court to court, particularly in waiting time for a bailiff appointment. But 6 months certainly happens.

      Though, on reflection, if s.21 claims are taking as long as you suggest, that also reduces the strength of the argument that they are faster than s.8 ;-)

  15. Giles, I don’t think it is a case of falling skies, but rather the locus of any fallout.
    Nor will it be a primary effect that landlords will need to up their game. What they will up is rents (not out of any malice, but the reality of life is that things are ultimately paid for) and make it even harder for marginal tenants.

    There will be clear losers. Those losers will be most (not all) tenants. Anyone who thinks otherwise lives in a fantasy land.

    As is commonly the case in current society problems are misidentified – and “solutions” to those problems are therefore misplaced. The real problems are artificially suppressed interest rates, an artificially generated housing bubble, and a welfare system and “help” for new buyers that has fueled these problems. Some landlords have benefited from these distortions – but the proposed solutions (lets protect the folk who took out ludicrous mortgages, protect the housing bubble, and then make the integrity and safety of operation within the PRS implode) is going to leave tenants in a bloody mangled mess. As a landlord I’ll be laughing all the way to the bank – but I suspect many won’t.

    • Abel – again, this was the response I predicted. It may even be accurate about effect (though I’m less certain about that). I think you (and nearly all the landlord commenters so far) have really rather missed the point. If this does indeed turn out to be a real proposal, what will be your arguments against it? Apart from ‘rents will increase, homelessness will increase’ – that was tried on the s24 argument. Might actually be true, but didn’t work. On this one, it would just look like petulance and a confirmation of exactly the issues with the PRS that are alleged against it.

      Think! Here is a measure which would be cast as making it less easy for landlords to evict people to put rents up, or in retaliation, or for minor issues (doesn’t matter whether this is right or not for present purposes). How would it appear when landlords response is ‘well we are going to evict lots of people now and won’t give them tenancies in the future, and put rents up as well’? Is that going to get much in the way of public or broader support?

      I remain astonished at how poorly landlords understand or have got to grips with their public image. This would be another example of that…

      The point of my post was what would be a justification for s.21 beyond the issue of efficiency of the courts. Because, if this does turn out to be a serious proposal, landlords are going to need a better justification. No-one has come up with one yet.

  16. One thing that screams out at me from this article, and the ensuing discussions, is the gulf between theory and practice.

    Nailed it right there Nick.

    And whether it is an average of 8 months or 10 months to evict, what that doesn’t include is the months or years leading up to the landlord’s decision to evict.

    – Unless of course you are of the opinion that tenants can do no wrong and landlords just wake up one morning and decide to evict on a whim.

    • But none of this is about that. You can wander off and play with your strawman as much as you like. You are, however, helpfully demonstrating the utter inability of some landlords to actually get to grips with PR, politics and making a viable case beyond your own bunker of self interest.

  17. Maybe Giles, it is not about PR, politics or self interest.

    All this aside (for now), a genuine happy New Year.

  18. Giles said:

    “I remain astonished at how poorly landlords understand or have got to grips with their public image. This would be another example of that…The point of my post was what would be a justification for s.21 beyond the issue of efficiency of the courts. Because, if this does turn out to be a serious proposal, landlords are going to need a better justification. No-one has come up with one yet.”

    I think it is you missing the point, Giles.

    It is nothing to do with Landlords having to make any better justification for anything. Politicians set the rules, ideally on the basis of some actual evidence. The consequences of those rules are determined by operation of the market and by the way the world works.

    No one subject to the policies have to justify anything.

    It is about fantasy evidence-free populist policy hitting up against the brick wall of economic reality. It is about politicians dreaming up policy on the basis of PR instead of evidence – that is the only place PR comes into the thing.

    • Well no, certainly not if you want to head off or change a proposal. Which, when it is an evidence free, potentially disastrous policy, is a good thing to try… It doesn’t always work – heaven knows I’ve knocked my head against some brick walls (including arguing alongside the RLA and NLA that the Homelessness Reduction Bill – as was – should include a statutory provision preventing councils insisting on those threatened with homelessness having to wait for eviction. That has made it into the Guidance, but should have been in the Act). But if you don’t try, then it will certainly happen.

      Part of this is looking for wider support, including public support, which means also bearing in mind the perception issue.

      Of course, of you just want to sit back and complain after the event, that is always open to you. Remarkably ineffective, but open to you. Sadly, waiting for political decisions to be only made on the basis of reasoned evidence will be a long wait…

  19. Property developers invest in the construction, refurbishment, and selling of a property for a profit. Landlords fundamentally invest in the tenant. How does waiting for eviction benefit the tenant (it never has the landlord). Accelerated High Court possession hurts more.

    Public support will only ever happen when landlords see their investment IS the tenant, and not just the bricks and mortar.

  20. One urgent issue for me in relation to s21 are the court costs. Not only are tenants who have done nothing wrong being held liable for the £355 fee of the accelerated claim on top of being made homeless, I’ve come across some landlords attempting to rely upon clauses in the tenancy to trump the CPR on fixed costs in order to claw back their solicitor’s fees in full from the tenant.

    Also, more and more housing allocations policies include court costs as “housing-related debt”. So tenants who are evicted through a no-fault possession claim could conceivably be accused of so-called “unreasonable behaviour” by not paying the landlord the court costs and thus be prevented from bidding for social housing. Is this unlikely? Yes. Impossible? No. In fact, given the pressures LAs are under with the sheer numbers of people on housing waiting lists, it wouldn’t surprise me if such decisions have been made somewhere, but I’ve yet to come across one.

    Finally, in homeless applications if LAs get just a whiff of rent arrears – or even just a few late payments – being a reason behind the s21 claim, an intentional homeless decision is almost certainly going to be made.

    And I say all this knowing I’m likely to serve my tenant a s21 in the next few months because I’m thinking of selling the property. The s21 claim has its advantages, but it’s far from perfect. Personally, I like the idea of the costs of a claim relying on a s21 being borne by the landlord in all cases. It’s a small change, but it could be significant.

    • This is all true. And all arguments made when the Homelessness Reduction Bill was underway, on the issue of councils making people waiting for eviction. Sadly, those arguments did not prevail in the Act itself, though the draft Code of Guidance does address the issue.

  21. This is a very interesting statistic (from MoJ data)

    “The use of S21 is highly concentrated geographically. Four out of every five repossessions using S21 are in London, the East and the South East, and nearly two-thirds are in London alone, although London only has one-fifth of the private rented housing stock. Even within London, repossessions using S21 are highly concentrated, with a third occurring in only five boroughs.”

    https://www.jrf.org.uk/report/poverty-evictions-and-forced-moves

  22. Pingback: Tessa Shepperson Newsround #31

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.