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.