The End of Section 21

I’d suggest sitting down before you read this.

The Secretary of State for Housing, Communities and Local Government, James Brokenshire, has announced/is to announce depending on when you read this, that the Government is to abolish section 21. Honest. Really. Truly.

Feel free to take a moment. I found out on Friday, under embargo, and am still taking a moment.

If you have recovered, read on. From the press release:

The Communities Secretary, Rt Hon James Brokenshire MP, said:

“By abolishing these kinds of evictions, every single person living in the private rented sector will be empowered to make the right housing choice for themselves – not have it made for them. And this will be balanced by ensuring responsible landlords can get their property back where they have proper reason to do so.

When is this going to happen? Not quickly, that much is clear. There will be a consultation:

As part of a complete overhaul of the sector, the government has outlined plans to consult on new legislation to abolish Section 21 evictions – so called ‘no-fault’ evictions.  This will bring an end to private landlords uprooting tenants from their homes with as little as eight weeks’ notice after the fixed-term contract has come to an end.

And, it appears, that as part of that, that proceedings under section 8 notices and Housing Act 1988 Schedule 2 grounds of possession are also to be reviewed:

Under the proposals, landlords will have to provide a concrete, evidenced reason already specified in law for bringing tenancies to an end  a marked step-change from the current rules which allows landlords to evict tenants at any time after the fixed-term contract has come to an end, and without specifying a reason.

And to ensure responsible landlords have confidence they will be able to end tenancies where they have legitimate reason to do so, Ministers will amend the Section 8 eviction process, so property owners are able to regain their home should they wish to sell it or move into it. 

Court processes will also be expedited so landlords are able to swiftly and smoothly regain their property in the rare event of tenants falling into rent arrears or damaging the property – meaning landlords have the security of knowing disputes will be resolved quickly.

Ministers will also work with other types of housing providers outside of the private rented sector who use these powers and use the consultation to make sure the new system works effectively.

There will, of course, have to be changes to the existing Schedule 2 grounds. But these need to be carefully considered (and also the extent of their application – would they apply to all assured tenancies, including social tenancies?). And expedition of court processes? As per my previous posts on a ‘housing court’, this is in large part a question of resources.

And of course, there are all those requirements that have the invalidation of a s.21 notice as their sanction for breach, from deposit protection to provision of gas safety certificates. All those will need re-thinking.

So there will be much at stake, in the consultation and in the consequential legislation (if it happens).

And as Labour’s response from John Healey, Shadow Secretary of State points out

“Any promise of new help for renters is good news but this latest pledge won’t work if landlords can still force tenants out by hiking the rent.”

But still, blimey.

We live in uncertain times. The life span of the current government is anyone’s guess. But this is quite remarkable, and would have been unthinkable even a few years ago. As Labour announced that its policy was to end no fault evictions some time ago, we are now in a position where both the major parties have as their stated policy the ending of section 21.

We should also note that the First Minister in Wales announced on Friday that the Welsh Government will be banning section 21. This is a little baffling, as when Renting Homes (Wales) Act 2016 finally comes into force, it will scrap assured shorthold tenancies altogether, and section 21 will cease to exist. However, in its current form, Renting Homes (Wales) Act does include ‘no fault’ evictions by landlord’s notice, so it has to be presumed that what was intended was that RH(W)A will be amended to remove that. Which will no doubt delay it further.

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, assured-tenancy, Housing law - All, Possession and tagged , .

95 Comments

  1. What about short term lets, like students? I guess a fixed term AST will still end at the end of the fixed term? I was advised that I should issue section 21 to coincide with the end of a fixed term as a “belt and braces” move.

    • Student lets should be the least of the problem; they usually leave after the end of their term anyway.

      If Section 21 were needed for students we would already have a huge issue with students impacting next year’s student tenants because Section 21 enforcement usually takes 3-5 months anyway.

      So not really an issue.

    • This is really a reply to Fred B – Students are a significant issue with this change.
      You need to also think about the students who want to move in as well as the students who plan to leave. How can you sign-up the next round of students if you cannot provide comfort that the existing round of tenants will leave?

      Student lettings are a process. Not a single event.

      Add in the Article 4 HMO restrictions in a lot of student towns and the potential for major housing problems can appear…

      The last time we had security of tenure like this, student populations were significantly smaller…

      Also remember that security of tenure ALWAYS comes in with rent controls… (maybe not immediately, but looking at the comments below and others, within 24 months.

      (In the end, the rogue landords will still persist under the radar and the rent becomes a “cash in an envelope” exercise).

    • Hmm, I made an input to that consultation specifically around student lettings.

      I’m not optimistic that this will happen as I cannot see this easily fitting into the laws except for exemptions re HMOs (Planning class C4 housing/Sui Generis) and holiday lets (is this a license vs a tenancy?). Student halls of accommodation are easy as this already has separate definitions (see the 2004 Housing Act for example).

      If we consider that the government is fully stuck into Brexit mode, the ability for spare head space to consider smart legal clauses to cover this type of tenant is weak at best. I.e. don’t hold your breath…
      – I’m fully expecting that the only legal changes here will just be a “simple” repeal of Section 21 and that’s it.
      – The rest will have to lump it in the bucket of “lets hope it all works out in the end” approach which seems to be the current operating process for the government of late…

      – Ok, I must admit that the “Fitness for Habitation” bill was a good result! ;-)

    • I suspect it probably will happen. Having worked with MHCLG people during the H(FFHH)A, they are very alive to the ramifications of things. They may be overruled by their political bosses at times, but these things most certainly will be thought about.

  2. The phrase ‘unintended consequences…’ springs to mind. The implications for deposit protection and gas safety and whether these reforms would extend to other tenancies are valid points indeed.

  3. We issue very few S21s and the only reasons we do are a. landlord or member of their immediate family needs the property as their home b. landlord needs/wants to sell c. tenant in breach of conditions of their tenancy. If the new legislation makes possession easier in these situations it will not be a game stopper but when you consider S21 (getting my house back easily if I needed to) was a factor that encouraged many landlords into the sector, removing this will remove this and likely have a negative effect (in terms of people wanting to be landlords).

  4. On one level it is a strange turn of events given that the response to Ed Milliband’s plans to introduce three year fixed term tenancies was to accuse him of being a Venezuelan style Marxist.

    Yet on another, the explosion in the size of the private rented sector following the collapse in home ownership means that even moderately well heeled proto-Tory voters are otherwise doomed to raise their families in homes with no security of tenure – not a good look!

    All we need now is some proper rent control, oh and something to sort out the rogue landlords responsible for the 25% of all private lettings in England that fail the government’s decent homes standard*

    *Source, 2019 English Housing Survey

  5. It will make for stronger intentionally homeless decisions if a Court has decided the evidence leads to an eviction.

  6. I think that this is a good thing for Landlords, the Gov. will use this to improve S8, for example if a Landlord want to gain possession because they want to move back in, they may not require it to be in the tenancy agreement, but they may still require that the tenancy can only be ended when there is a break clause or the end of a tenancy coming up and perhaps with with say 90 days instead of 60.

    it will no doubt add some sort of 2 month notice requirement to S8 to replace that of S21 for when a tenancy is coming to an end.

    They may remove the ability of a tenant to stop a S8 G8 claim by reducing the arrears to under 2 months and make it only that there was say 3 months arrears at the time proceedings were started, then when it came to Court the Judge could decide whether they were going to consider it mandatory, in other words, it is would be a stronger case than a case brought on S8 G10/11 alone because they went to 3 months arrears but perhaps still not mandatory. One of the biggest reasons people used S21 was because tenants reduced arrears and cost them their fee.

    I can see Landlords wanting G13/14 becoming a mandatory ground, especially in the the event of damage caused to a property, one of the biggest issues for Landlords is when a tenant in in situ, has caused thousands in damages and it allowed to remain and continue damaging the property.

    The Gov cited that revenge eviction is still a problem and one of the drivers here, I agree this is still a huge problem because even if the tenant ticked all the boxes, they are only assured 6 more months. I would like to see this extended to 3 years with no rent increases (post the improvement order being fully complied with), this would give a proper incentive to Landlords to keep their properties in good order.

    Deposit protection and all the other blockers will all have to be moved to apply to any S8 claim, the easiest way to do this is to amends S213 et al to apply to S8 as well as S21 (incase any remnant of S21 is left – I can see S21 remaining not as a no fault but merely as a way of giving notice that a fixed term tenancy will not be renewed or that a break clause is being exercised. I would like to see these all increased to 90 days for Landlords. That way a tenancy would not drift into SPT.

    Whilst it is perfectly reasonable that a tenancy ends when it says it is going to end or says it CAN end with a break clause, (subject to the protection of Deposit Protection et al that are on Form6A). However, I would like to see some statutory minimums in tenancy length, Labour want 3 years the Tories probably might go for 2 years, but both parties need an option to end a tenancy early, the tenant with say a statutory break clause every six months and the Landlord when there are grounds under S8, but I would increase the current 60 days to 90 days except where there has been serious damage to the property or failure to pay ANY rent.

    I am sure others will have other ideas

    • Hi David. This is most definitely not what is being proposed. That boat has sailed. Fixed terms will be an irrelevance. There will be no break clauses.

      Both Labour and now the Tories have as their express policy ending ‘no fault’ evictions and no limits on term of tenancy.

    • Well yes there is. A fixed term can’t be over 7 years without being registered with the Land Registry for starters. But I think you are being deliberately obtuse. Ant tenancy that can be ended, without fault or ground, at the expiry of the fixed term is limited.

  7. Hi Giles, What I am no clear about is if the rent can be hiked at the end of each tenancy term then there is a way for the landlord to practically end the tenancy at the end of term. If so, why would say that “fixed terms will be irrelevance” ?
    Thanks, Ben

    • What tenancy term? A fixed term would only have practical effect for setting a period within which the tenant could not give notice. There would be zero requirement on the tenant to enter a new fixed term at the end of that because what is the landlord going to do if they don’t? That is the point of indefinite terms.

    • Ben,
      To answer what I think is the spirit of your question, no, a landlord won’t be able to practically end a tenancy by playing games with the rental amount. A S13 rent increase allows an opening for dispute to the first-tier tribunal.

      I still think fixed terms would have meaning for tenants as it can lock in the rent for the period. Unless I’m misunderstanding something here.

    • For a year.
      But the re-evaluation of Section 21 began, if I remember correctly, with Labour initially advocating for three-year minimum terms.

    • Yes. There would not be any problem with contractual terms specifying a period of set rent, as far as I can see, regardless of whether there is a fixed term or not.

  8. Thanks Giles, so basically once the first fixed term is over, it will become rolling = indefinite … One would think that some provisions will need be added at least to catch up with inflation. That it is just the additional uncertainty that we needed in the post-brexit-vote wobbly housing market. Many thanks for the article and for he swift response.

    • We’ll see where the consultation leads. I’d imagine a lot of tenancy agreements with a built in annual rent review, though statute may restrict that.

  9. What happens if the tenant refuses to agree any rent increase at any time? What protection will a landlord have?
    I can see landlords selling up, which will mean:
    – tenants will lose their home
    – a dearth of property to rent in its place
    Like many of these areas where government interferes, the law of unintended consequences will apply.

  10. Am wondering how this would work on an ast started before the implementation date of this change. Would it then apply retrospectively or only to tenancies created after the new law?

    • Dunno. We would have to see detailed proposals, and that is quite some way away. (But it wouldn’t be ‘retrospective’ – it isn’t a matter of the tenancy agreement. Section 21 is by operation of statute.)

  11. It seems to me that Rent Tribunals will be deciding what market rent is going forward, with the only market to judge it on being their own previous decisions: I.e. it’s the end of the market.

    • Well we’ll probably see landlords use rent review clauses more rather than go to tribunal for rent increases, I suspect. If anything the knock on effects of these changes will probably be a need for more explicit consumer rights guidance on how rent review clauses should be constructed. (E.g. We could probably do with more explicit guidance from the CMA about what constitutes an unfair term in relation to rent-setting.)

      Of course it’s all theoretical at this point as basically anything could happen over the next few years.

  12. I wonder if the legislation will even keep assured shorthold tenancies around as a form of tenure distinct from non-shortholds? On the one hand it seems a bit pointless to do so if s.21 is repealed as its pretty much the defining feature of a shorthold, on the other hand there’s a whole bunch of regulation regarding deposit protection and the various pieces of prescribed information that’s tied up in assured shorthold status and not really intended to apply to non-shortholds in the social housing sector etc.

    In an ideal world I think the better option to minimise unanticipated knock-on effects would be wholesale reform of the housing tenure system to implement completely different forms of protection for the private rented sector compared to registered providers of social housing as is gradually happening in Wales. (And preferably try to minimise the legal significance of the tenancy/licence distinction as far as possible for residential lettings as frankly it’s an increasingly outdated relic of 1920’s era thinking.)

    But that’s an even bigger project than repealing s.21 and despite the valiant efforts of the Law Commission back in the Blair years is probably not going to happen. Then again I would have said the same about repealing s.21 a month ago so who knows?

  13. So, another change that makes for good soundbites but is likely to adversely affect the weakest and poorest in society. Risk/reward will swing very much to the risk end.

    Those at the bottom, who should be in social housing, are going to find it much harder to get PRS housing as landlords will not want to take on the risks of having a tenant with ASB, who damages property, who is at the mercy of the benefits team, etc, without being able to get them out without a lengthy evidence-gathering period and lengthy, defended (regardless of merit), and costly legal process.

    Those people will end up in the clutches of the criminal landlords who won’t care about the legal processes anyway.

    The government should be looking at ways to improve enforcement and provide more social housing, not driving out private landlords so that their build to let chums can cream off the higher end.

    • Michael

      This ‘risk assessment’ sounds like stereotyping. In my experience, amongst the worst trashers of properties are ‘young professionals’ and landlords lose the most from professional seeming fraudsters with fake references etc.

      I’ll grant that Universal Credit is a disaster, but section 8 and ground 8 exists. Quite why landlords are so terrified of having to evidence a case has always puzzled me.

      And defended ‘regardless of merit’? Not on legal aid.

    • Neighbours will complain to LL about noise and other behaviour by tenant, but getting them to maintain a diary or provide a statement for court proceedings is difficult (in my experience).
      I read a report a few days ago where a social housing organisation managed to get an eviction for ASB after 10 years; not somewhere I want to be.

    • Because, rightly or wrongly, LLs will view such people as statistically more likely to become problem tenants and avoid letting to them.
      Who, in their right mind, wants months or years of hassle?

  14. It will be interesting to see what the requirements will be for a landlord to evidence that they will be selling the property or moving back in. In our experience, these are common bogus reasons currently used by landlords to end tenancies, so some safeguards will be needed to stop this continuing.

  15. “Quite why landlords are so terrified of having to evidence a case has always puzzled me.” In my experience the reason Landlords choose S21 over S8G8 are two fold; S21 being an accelerated procedure and second because the tenant can bring arrears down under two months which means the Landlord no longer has a mandatory case and so loses the Court Fee.

    I can’t see the Courts wanting to return fees in such circumstances so maybe if G10/G11 could become mandatory IF there are multiple SERIOUS late payments (more than 28 days each and at least 6 rent periods in previous 24 months) and that they have exceeded 2 months of arrears at least three times (if repaid). This would effectively define serious arrears or late payments and protect those who hit a bump in the road such as a change of employment, the 24 month option allows tenants to recover their reputation.

    With regard to what the requirements will be for a landlord to evidence that they will be selling the property or moving back in. For selling maybe they have to sell with sitting tenant with rights transferred to new owner, otherwise a landlord merely has to put a property on the market to get rid of a tenant, then take it off after. We have seen with Deposit Protection how Landlords will abuse the system which required further legislation. As for moving back in I do not think that a Landlord moving back in should have a higher right to occupation than the tenant. The Landlord made a decision to let the property as an investment, they will almost certainly have a mortgage at way below market rent. So they can rent (or buy) a property to cover the remaining life of the tenancy. What I might change is that if they want to end a tenancy because of moving back in, then they have to provide at least 6 months notice. We may need a requirement to inform the Council they are a returning Landlord, but to be honest they will likely just let a property with poll tax paid or on AirBnB.

    We have to be careful that whatever replaces S21 does not in effect end up making it easier to get rid of tenants.

    • If the s8 is on grounds 8, 10 and 11, then the possession claim continues even if the tenant has brought the arrears below 2 months/8 weeks, so no automatic losing the court fee. 10 and 11 are discretionary grounds, but should always be pleaded in addition to ground 8. I would be cautious about extending mandatory grounds.

      On the sale/moving back in proposed new grounds, I agree these will need careful consideration. But not all let properties are BTL investments.

  16. Why should not paying rent on time on any occasion not be regarded as “serious”? There could be serious repercussions for landlords (who people always seem to regard as wealthy even though this is not the case) who as a consequence may not be able to meet their own mortgage payments, pay household bills or nursing care fees etc, when due.

    If tenants keep landlords informed about changes in their personal circumstances, the overwhelming majority will work with the tenant in an attempt avoid void periods and re-letting fees.

    Only being able to sell a property with a sitting tenant would have a very significant adverse affect on its value. It cannot be right or fair that tenants on existing shorthold tenancies should gain rights above and beyond those which they agreed to at the commencement of the tenancy. To assume that a landlord can simply buy or rent another property because the rent they are receiving from the tenant will be more than the mortgage on the property is incorrect, because mortgage lenders take existing mortgages into account as well as income. The suggestion that landlords who have just lost their rights should just rent or buy another property trivialises the true effect on them.

    Existing agreements should be unaffected by any new law. This will allow landlords to exit the market and new entrants (who know what they are letting themselves in for) to take up the slack. If those suggesting the new rules are confident enough that the new rules are fair, there will still be plenty of properties to rent.

    • Of course non-payment of rent is serious. That is why it forms several grounds for possession (8, 10 and 11). Nobody is suggesting changing that to make it less serious.

      Any landlord who is operating on margins so tight that they can’t cover, say, 3 months of unpaid rent without personal risk is probably not going to be a good landlord though. Leaving aside rent arrears for the moment, what happens if there is an unexpected void period? Or the property has to be empty for significant repairs (costs of both). What if the central heating system needs replacing? These are basic business risks and any professional landlord should expect (and be able) to cover them, or there is the clear risk that they will not be able to fulfil their basic responsibilities as a landlord.

      The position on ‘existing agreements’ is complicated. Tenants don’t just sign up to a tenancy agreement, they and the landlord have statutory rights that aren’t part of that agreement (including, for example, s.21 itself). Statute can change. It doesn’t necessarily affect the tenancy agreement, but it does affect those statutory rights. Scrapping s.21 wouldn’t change existing tenancy agreements (I’ve not seen any that include s.21 expressly).

      A ground for sale of property has been expressly proposed by the Govt. What would be required to evidence that, to avoid abuse, we will have to see.

      But the details of any transitional period will have to be carefully considered (after all, why should tenants face eviction simply because of the change?) and are a long way off yet.

  17. Equally, tenants should put money aside to cover rent in unforeseen circumstances such as a change in employment – it shouldn’t be for landlords (perhaps in effect by law once the changes come into force) to fund. The message seems to be that there should be a one way street whereby its the responsibility of landlords to respond in order resolve all issues (put money on one side to fund missed rent, buy or rent a different property not move back into their own, sell with a sitting tenant etc). This encourages unscrupulous tenants.

    Over time there will be less rental properties on the market after the proposed changes – and a higher proportion of the landlords that remain will be those regarded as unscrupulous. This is a the problem with populist politicians – they think that they can make a change and all other things will remain constant other than the thing they have changed. In reality people respond to the change and very often the outcome is the opposite to that intended.

    • The difference is that a tenant can’t evict their landlord if the landlord fails to carry out their obligations.

      And no the message is not a one way street. Which bit of ‘rent arrears are grounds for eviction’ passed you by? No-one is suggesting landlords should fund tenants failing to pay their rent.

      This sort of melodramatics is really not going to help landlords make their cases on any forthcoming changes.

      Personally, I susepct there will be a lot of noise and fuss until the change has taken place, then everyone will get on with the new normal.

    • Martin we hear Landlords whining and saying people will leave the market but they are still in it despite the punishing tax changes, if anything was going to make them leave that would have. I would have liked to see a way for them to convert personal holding into a company with a break on stamp duty if property was held for at least 5 years thereafter by that company.

      Obviously some late payments are less serious, people get paid a few days late, that may be beyond their control, as Giles says if you can’t carry 3 months or your margins are that tight then that is YOUR FAULT for bad decision making in the first place.

      Good Landlords want long term tenants to avoid voids and costs, sure there will be some bumps in the road but that is no different to when you get a payment holiday from your mortgage company.

  18. If a landlord fails in its obligations, a tenant can leave and rent a different property. In fact a tenant can leave at any time after the fixed term has expired on one month’s notice. In that sense a landlord can be “evicted” very easily. The proposed legislation is all about tenants having security of tenure come what may, not about landlords not fulfilling their obligations.

    I don’t believe that missing a single rent payment will be grounds for eviction – and I don’t think you’re suggesting that either. If it were something along the lines that David suggested above: (multiple SERIOUS late payments (more than 28 days each and at least 6 rent periods in previous 24 months) and that they have exceeded 2 months of arrears at least three times (if repaid)), then in effect landlords would have to fund tenants rent to that extent – that is a FACT. The bottom line is that whatever leeway is given to the tenant on rent payments before eviction becomes an option, becomes the effective rental terms.

    I am not being melodramatic in making my comments – everything I have said is thought through and is accurate – I am merely pointing out how scrupulous landlords will see the changes – which will in turn drive their behaviour – which will mean that the “new normal” letting market will not be favourable from a tenant’s perspective.

    • Martin, of course the tenant can’t leave. They are stuck with the contract, remember. The landlord is under no obligation to mitigate their loss and can demand the rent for the rest of the term.

      And after the fixed term, the tenant incurs losses in fees and costs in moving that they can’t claim from the landlord. Stop trying to pretend there is an equivalence here.

      Yes, the proposed legislation is about security of tenure. No, it very obviously isn’t ‘come what may’.

      Missing a single rent payment is already a ground for eviction.

      So, no, everything you have said is not accurate…

    • Sorry Martin but that is a Joke, when a Landlord evicts a tenant the Landlord does not lose their home, the Tenant has way more at stake, they may have kids at the local school, transport to work x2 for their partner, not to mention the huge costs of moving which cost them way more than a business.

      Whilst a single missed payment is grounds for eviction we all know that a Judge has to consider the impact to both sides, hence not mandatory ground, but we need something defined as I suggested above and that you quoted. Let’s face it, what most Landlords fear is not the single missed payment or even 6 if a tenant has brought the account back up to date in a responsible manner, but the tenant that has total disregard for the property. I genuinely think this will be a good thing for Landlords, it will allow for improvements in S8 and see it used properly. Yes some amateurs or rogues may get out but chances are they will sell to another Landlord as so many people are unable to get a mortgage.

  19. Giles

    What I said was: “a tenant can leave at any time after the fixed term has expired on one month’s notice.” That is entirely accurate.

    A landlord has to incur re-letting fees if a tenant leaves (assuming he wants a new tenant). I think that there is more of an equivalence in bargaining position than widely considered.

    I was making the point that the proposed legislation is about security of tenure and not about landlords not fulfilling their obligations.

    The suggestion was that a single missed payment would no longer be grounds for an eviction and it was the suggestion made by David as to what arrears could be required before eviction was possible. That was what I was commenting on.

    There are no inaccuracies in any of the above.

    • Martin

      You started ‘If a landlord fails in its obligations, a tenant can leave and rent a different property.’ That is wrong. So, perhaps you meant to say ‘if a landlord fails in its obligations, a tenant can leave but that may be between six months and two years afterwards and they will have to put up with it in the meantime’.

      There is no equivalence on the fees and costs – a tenant who gives notice because the landlord ha failed in its obligations incurs those costs of moving because of the landlord’s failings. If the landlord incurs costs because of the tenant’s notice in that situation, that is also because of the landlord’s failings.

      If the landlord incurs costs on a tenant ending the tenancy, that is a normal state of affairs, as is the tenant incurring costs of moving because of their decision to move.

      You said “I don’t believe that missing a single rent payment will be grounds for eviction – and I don’t think you’re suggesting that either.” Once again, it is currently, right this moment (and since 1989), a ground for eviction. I have seen no suggestion that this would change.

      For clarity, I mean, no, not everything you have said is accurate. It wasn’t and it isn’t.

  20. Giles
    If a landlord persistently fails in its obligations then a tenant can terminate the tenancy and leave before the expiry of the term. The difference is that a tenant can just leave whereas a landlord needs (or will need) a court order to get its property back. The tenant is in a better position than the landlord in this respect.

    If either the tenant or the landlord is in breach of its obligations then the other may suffer costs and fees – that is a two way street and not a one way street whereby the costs only arise in the case of a landlords failings as you are seeming to suggest.

    Anyway, the debate is about security of tenure, whether this should apply retrospectively and the effect on the lettings market of removing S.21 – and not about failure to honour obligations. If the latter is the issue, abolishing S.21 is not addressing the issue.

    • Martin, the tenant can’t just leave before the expiry of the term, regardless of whether the landlord fails in their obligations. Please point me at any legal provision that allows that, or any case law. Any at all.

  21. “Melodramatics…… a lot of noise and fuss”

    I agree, on the face of it, it is much ado about nothing.

    But this goes far beyond the legal actualities.

    Unfortunately, the message that has gone out loud and clear (however wrongly) is
    -Landlords can’t get their properties back.

    This added on to the huge wave of recent landlord bashing.

    To coin a phrase-

    “It’s gone visceral”

    • Repudiatory breach? That only works where a fundamental of the contract has not been performed. In a tenancy that would have to be something as drastic as, well, not actually providing the dwelling. And even then, tenant can just walk away, unless landlord agrees, they have to go to court.

      Rescinding a contract for misrepresention may be possible, so long as there was misrepresentation, and it is done right at the start of the tenancy, within the first 30 days or so. Again, has to go to court if landlord doesn’t accept the rescission. And, because it is about what is given at the very start of the tenancy, doesn’t help with the persistent failure to meet obligations point.

      Sorry, Martin, it remains the case that there is no way for the tenant to just walk away if the landlord persistently fails to meet their obligations.

      As we have no idea of what the reforms of s.21/s.8 will look like yet, I’ll leave it to others to decide for themselves on the degree of melodrama involved.

    • Did you actually read that case, first of all it is not about a property, secondly…

      “In construing whether the breaches of multiple obligations entitle an innocent party to terminate depends on whether the breach deprived the innocent party of the substantial benefit of the contract. In this case, the cumulative breaches do not justify an inference that the contractor would be depriving the council of a substantial benefit of the totality of the four-year contract, and thus cannot be considered repudiatory.”

      Tenants can try the Repudiatory route but they really are rolling the dice, the court fee is huge for them as individuals, the cost of legal representation and risk of costs would be prohibitive. Having said that, most Landlords would be wise to just let the tenant go and move on.

  22. The problem from the point of view of a landlord who has done no wrong is that S8 does not work in terms of providing a timely and low cost resolution to the actions of a non-paying ne’er-do-well tenant who does not baulk at indicating at a S8G8 hearing that there are disrepair issues (which in reality do not exist or have been created by the tenant).

    The landlord is then faced with another several months’ losses awaiting a longer hearing slot; losses which it is likely will never be recovered.

    Yes, the law will eventually give the landlord possession, so it could be considered to have “worked”, but does it seem like justice to the landlord who has done no wrong?

    • Reform of s.8 was part of the Govt announcement.

      Nobody has a timely and low cost resolution to anything at all in the courts these days. That is a funding and staffing issue.

  23. Michael

    The answer is, of course, that no it will not feel like justice to the landlord. Importantly (and in many ways this is the crux of the matter as you have indicated) the use of S.21 in the circumstances you describe may result in a speedier and cheaper recovery of the property than going down the court route – but it will only be available to the landlord if the fixed term has expired.

    If a tenant wishes to avoid being in a position whereby a S.21 notice could be served then he or she could seek a new longer term fixed contract on the expiry of the existing term. A landlord who wishes to continue to rent out the property would no doubt agree to this if the tenant had complied with the previous lease terms. A tenant has never asked me for a new fixed term but have always been happy to remain in the property by holding over. A new fixed term would actually suit me if the tenant had complied with the lease terms to date – I guess that holding over suits the tenants I have had because it allows them to leave on one month’s notice if they so choose, giving them great flexibility.

    The truth of the matter is that in the overwhelming majority of circumstances, with S.21 remaining on the statute book, if a tenant complies with the terms of the lease them he or she will be able to stay in the property until such time as the landlord wishes to sell it, or move back in himself or herself (grounds for recovery of the property which it appears are intended to remain even if S.21 is abolished so no change there). However, if S.21 is abolished, then landlords will have to engage in a court process for recovery for non payment of rent, with the attendant delay, fees and costs – which plays into the hands of unscrupulous tenants. We will also have market rents set by tribunals (an oxymoron) which again will result in delay, fees and costs.

    Many of those defending the proposed changes know that the abolition of S.21 swings the balance heavily in favour of tenants, but are disingenuous when making arguments in support of them.

    The net result of the proposal, if brought in, will be a vastly diminished market as landlords exit never to return. That won’t help tenants .

  24. Giles
    If you read the case you will see that the court accepted that persistent breaches of non fundamental terms can amount to a repudiatory breach of contract.

    • No, it didn’t. Still substantial benefit test. From your link..

      (2) In construing whether the breaches of multiple obligations entitle an innocent party to terminate depends on whether the breach deprived the innocent party of the substantial benefit of the contract. In this case, the cumulative breaches do not justify an inference that the contractor would be depriving the council of a substantial benefit of the totality of the four-year contract, and thus cannot be considered repudiatory. Accordingly, there was no right to terminate.

  25. Giles
    Exactly. And that is why abolishing S.21 will see landlords exit the market (and would be landlords deterred from entering it. Applying to court under S8 (revised or otherwise) will always result in costly delays to the landlord whatever the level of funding of the court system. I suspect that I’m not telling you something you don’t already know….

  26. Thanks Giles – that’s interesting. Do you have the mean average number of days for each rather than the median average? I believe they will be very different.

    Also, the figures you’ve quoted won’t show how many tenants just leave on expiry of a S21 notice without a court proceedings being opened. This would bring the 14.6 weeks you’ve quoted down considerably. The landlords concern is having to repossess its property via a costly court process court from a tenant who is not paying the rent in the meantime.

    Plus, there will be less legal costs in S21 possession proceedings because the court has no discretion so there is nothing to argue about.

    The above assumes of course that the tenant in question has no intention of paying. In reality with an honest dialogue between landlord and the tenant, matters will in the vast majority of cases be resolved by agreement. No fair minded tenant would expect a landlord to forgo his or her rent arrears indefinitely and a landlord will wish to keep a good tenant and avoid letting fees and a void period, so the dynamics for an agreement are present with S21 on the statute book.

  27. Giles – regarding the caselaw quoted supporting the proposition that persistent breaches by a landlord may allow the tenant to terminate – yes the cumulative effect of the breaches has to be sufficiently serious (one would expect that) but the case confirms that the tenant can terminate in such circumstances.

    The fact that in the particular case quoted the council did not meet this criteria is irrelevant – the case supports the above principle. That’s how case law works.

    • Not ‘sufficiently serious’ – a repudiatory breach has to go to the heart of the contract and void the ‘substantial benefit’. Fora tenancy, that, effectively, is the provision of the property. Still, I see we have gone from ‘the tenant can just walk away’, to ‘the tenant can allege repudiatory breach on a sufficiently serious series of persistent breaches, and then take their chances in the court proceedings that follow’.

      This is not the ability to ‘walk away’ – this is, at its best, a high risk action, with the near certainty of facing litigation with no certainty of winning.

      Look at the Court of Appeal decision in Telford Homes (Creekside) Limited v. Ampurius Nu Homes Holdings Ltd [2013] EWCA Civ 577

      The CoA said, when looking at an alleged repudiatory breach, look at:

      1. What benefit A was intended to obtain from performance of the lease agreement.

      2. The effect of the breach on A, including: its financial loss; how much of the intended benefit of the contract it had already received; whether it could be adequately compensated in damages; whether the breach was likely to be repeated; whether T would resume compliance with its obligations under the contracts; whether the breach fundamentally changed the value of T’s future performance of its outstanding obligations.

      So, any tenant would have to show, for example, that the landlord had not just failed in their obligations but that they would continue to do so. That is borderline impossible. Even worse, the tenant would have to show that even if the landlord continued to fail in their obligations, it would not be sufficient to be compensated in damages.

      Now can we please stop this nonsense that a tenant can walk away if a landlord does not fulfil their obligations.

      (And yes, I know how case law works, thanks.)

  28. Giles
    It looks like we will have to agree to disagree. I maintain that persistent breaches by a landlord which are sufficiently serious allows the tenant to walk away – and in fact nothing you have said runs contrary to that.
    In any event my interpretation is at least as convincing as your argument that a landlord can straightforwardly use S8 to obtain possession from a tenant who misses a rent payment.

    • Martin, the tenant can’t walk away. They can try it, and face very difficult legal proceedings that they will likely lose. The complete absence of case law on repudiatory breach (rather than early recission) speaks for itself. A repudiatory breach goes to the heart of the contract, and as long as the property continues to be provided, any such assertion will not succeed.

      A landlord can straightforwardly use section 8 to bring a possession claim on a missed rent payment. If it remains outstanding, without a clear position on payment, they are likely to obtain possession.

      Silence on the time scales for obtaining a possession order under s.21/s.8 noted.

    • Martin, when you are presented with the facts about time to evict you try to distort the facts and say you will have to agree to disagree. This does make your argument look very very weak.

      I have always advised Landlords to use S8 when there are grounds, sometimes I put in a S21 as well if there is a weird conflict (had this with a Council with one dept that was saying property needed gutting but another part were trying to use Dereg Act Revenge eviction.)

      S21 has always been unfair and this idea that Landlords will just let tenants carry on is honestly nonsense. Right now a tenant can be booted after six months with the appropriate break or short term contract, the Landlord can then increase rent with no risk of review. Landlords can also issue S21 and even with revenge aspect of Dereg it only gives them protection for a further 8 months.

      What we are facing here is a change in the market, previously we all bought properties so short term renting was ideal for all, but now we are going to be more like other countries where renting is very much the norm and thus it requires greater security of tenure. In France you can only evict in warm months, so count yourself lucky that Landlords in the UK have such a liberal market.

      Giles is spot on in every post above, take the time to really understand what he is saying, it is for your own benefit.

  29. Giles,

    If the persistent breaches are cumulatively sufficiently serious the tenant can walk away. If you believe otherwise we are going to have to agree to disagree.
    Of course the tenant must be able to defend his or her actions, just as a landlord must be able to justify theirs in any possession proceedings brought for breaches of the lease.

    S8 claims may be brought straightforwardly (as you say), but the objective is not to bring proceedings, it is to gain possession – something you say landlords are LIKELY to get, IF IT REMAINS OUTSTANDING, WITHOUT A CLEAR POSITION ON PAYMENT.
    In other words, a tenant could not pay the rent, knowing he or she can wait for the landlord to go to the cost of bringing proceedings before having to pay – or even perhaps not paying even then – and then at the hearing promise to pay – and still remain in the property.

    Doesn’t sound an attractive business to be in does it?

    As for silence on timescales, even though it’s not clear at all that the numbers you have quoted from the report relate to S8 / S21 proceedings, what I said above was:

    “Do you have the mean average number of days for each, rather than the median average? I believe they will be very different.

    Also, the figures you’ve quoted won’t show how many tenants just leave on expiry of a S21 notice without a court proceedings being opened. This would bring the 14.6 weeks you’ve quoted down considerably. The landlords concern is having to repossess its property via a costly court process court from a tenant who is not paying the rent in the meantime.”

    • Martin

      Go on then. What breaches by a landlord would you say amounted to a repudiatory breach of contract? I await with interest.

      On s.8 – either you get payment or possession. How would you respond to your mortgage provider on late payments?

      Mean is not the best measure, as distorted by a small number of longer cases. Median is more accurate.

      And the figures don’t show those who leave on service of a s.8 notice either, but your point was length of proceedings.

      Please stop changing the point when the facts are against you.

    • Martin,

      COULD being the operative word, but the majority of Tenants just want to pay their rent and have security of tenure.

      I have had to deal with tenants who never paid any rent for 5 months, they were apparently of good standing and it seemed an open and shut case, but we used a mediator before the Court date, he worked a miracle between the parties and got the tenant out in 4 days flat, the majority of rent was paid (with some offsets) 50% down and the remainder within the month. The landlord had the property earning income on AirBnB within 24 hours of the tenant leaving.

      The problem I come across quite often is a Landlord taking the “lord” bit too seriously, this leads to assumed rights often based on unfair contract terms that they added to what was a perfectly decent tenancy.

      There are bad tenants, a lot of them end up in social housing and you would do well to look at how they manage such tenants. The good ones are well oiled property management machines, they mostly can’t increase their rents. Consider that they rent properties with no decoration (the tenant can use a Refresh scheme to paint themselves), no flooring, no curtains, no cooker, no fridge. They look after the properties with regular cleaning of communal areas and have a service charge that passes that on proportionally to the tenant. They are super quick at the important maintenance and repairs, while even less important ones get done reasonably quickly.

      What is interesting is that the poorer housing associations are being merged, usually with the one with better practice surviving.

      I believe the recent tax changes will see Landlords forming companies to own their properties and they may sell those companies lock stock and barrel. Housing Associations may snap up some of those as they are facing huge issues brought on by changes the Government has made on them.

      The market is changing, get with the programme!

  30. Giles

    As for breaches by the landlord, it depends what the lease says – as you very well know.

    On S8, if I had a non paying tenant, I just want my property back so I can rent it to someone else who might pay, I wouldn’t ever expect to receive the arrears (nice as it would be). By contrast a mortgage provider doesn’t want the property, it wants its money back, which it knows it can ultinately recover from selling the property after repossesing it (which it would rather not do). The two things are completely different and the comparison pointless.

    The median figure is cold comfort to a landlord with the longer case. If it’s such a small number of cases, then it wouldn’t affect the mean average figure would it? So why not let us have it?

    In the real world, a tenant who doesn’t pay the rent but chooses to remain in the property regardless, will usually stay up until the court hearing with no corresponding reduction in the S8 notice figures.

    I’ve not changed any points either.

    • Oh come on. Bog standard tenancy. What is a repudiatory breach?

      And no, the situation isn’t different. You miss a mortgage payment, why shouldn’t the lender put LPA receivers in? They can. Why shouldn’t they?

  31. If you agree that I am right about the persistent breach point then I’ll look at it – which would make it pointless if you think about it because you’ll have conceded the point anyway.

    Well I didn’t actually say that they shouldn’t be able to appoint receivers, but if you’re challenging me to make out an argument, then how about: a landlord don’t have any security for non payment of rent (above and beyond the usual deposit anyway) like a mortgage lender has for non payment of the mortgage and a mortgage lender will get the arrears one way or the other anyway.

    If you think I’m being obtuse it’s because your questions are a bit facile tbh.

    • Martin. I don’t think you are right about the persistent breach point – that should surely be obvious by now – so I was asking you what, by way of example, you think would amount to a repudiatory breach. Your example case is a complete red herring – the issue is not repetition, it is, as it always was, whether the breach was sufficiently serious to be repudiatory. That remains an issue of the core of the contract. (Plus, of course, something not suitably remedied by damages). So go on, give an example…

      The issue was possession on arrears. Whether the lender has security it can exercise by obtaining possession (or appointing LPA receivers and selling) is by the by. BTL mortgage lenders can put in LPA receivers or seek possession on a single payment in arrears, and indeed they do. If you missed a payment, would you seek to negotiate with the lender about when and how payment would be made, or would you accept that possession is indeed fair enough, as you are in arrears and hand over the property without demur?

      Landlord can always take out rent guarantee insurance, but the point here isn’t security, it is taking possession.

      I don’t think you are being obtuse. I think you are being evasive.

  32. Giles
    Yes I think it is very obvious that we do not agree on the persistent breach point and there seems little point in me repeating (again) what I have already said. That being the case, there is no point in me applying my mind to giving examples of what could be persistent breaches (of an imaginary lease!), because you do not accept that they could amount to a repudiatory breach anyway! This seems a very strange line of questioning / argument for you to adopt.

    You asked me what the difference was between arrears under a lease and arrears under a mortgage in terms of whether or not time should be given to make good any arrears. Personally I cannot see the relevance of the question, particularly as I have never tried to compare the two anyway, or maintained that there should be any difference. Nevertheless I answered your question and pointed out what the difference was – which is that a mortgage lender would recover the arrears whether time to pay was granted by the court or not – whereas this is not the case for a landlord. I can’t see how it can be any clearer.

    You are now asking me whether I would ask a mortgage lender for forbearance if I missed a mortgage payment. For the life of me I cannot see the relevance of this question, but if you are interested to know, I suppose I would ask if I felt I could make up the arrears if given a not unreasonable period of time to do so – but that doesn’t mean I believe I should be entitled to that opportunity.

    Your “point” about a landlord taking out rental guarantee insurance to protect itself against non payment of rent by a tenant seems to be suggesting that the landlord only has itself to blame if it doesn’t receive its rent when the tenant doesn’t pay. This speaks volumes about the strong tenant bias you have to all the issues we have discussed. Is this bias something you freely admit to?

    • So having conjured up an argument without precedent, you aren’t going to give examples? And this isn’t evasion? OK…

      Position on breach of mortgage terms noted. And at least consistent. I know that quite a few landlords would disagree with you.

      My ‘point’, as you put it, on RGI, was simply that there was an option for landlords to protect themselves against a business risk. You appear to believe that a landlord’s business should be risk free, which would be quite unique amongst small businesses. That you consider this to be a suggestion that tenants shouldn’t have to pay pay their rent is, well what can I say, reaching…

      I’m not biased against landlords. I have acted for landlords/freeholders and contine to do so. That I haven’t drunk the koolaid makes me a better lawyer, to be honest. On the other hand, I don’t like special pleading and hand waving. Your trimming and evasion on the repudiation point that you raised is disappointing, but perhaps not that surprising.

      And I think this conversation is done.

  33. I consider that a landlord’s business should be risk free……

    I consider what you said about landlords rent insurance to be a suggestion by you that tenants shouldn’t have to pay their rent……

    – I defy anybody to read these interpretations into what I said.

    Because I have not given examples of cumulative breaches that would be repudiatory, demonstrates that cumulative breaches cannot be repudiatory in law? – nonsense.

    I agree that we should bring this debate to an end.

    • Martin, it is quite simple. You think an ongoing breach by a landlord could be a repudiatory breach. I am being doubtful. I ask for an example that would amount to a significantly serious breach. You refuse to provide one on the basis that I don’t accept your premise.

      I am open to being persuaded by argument. But not by contentless hand waving. So there we are.

    • Martin, with respect you only want to bring the debate to an end (notice it is now a debate not an argument) because you lost the argument.

      WHY should the Landlord’s business be risk free, no other business has such an indemnity, I have friends who lost £500k in the first 6 months after EU Referendum on currency, no amount of hedging could protect them and they lose more each year due to speculation.

      Rent insurance is merely a way for Landlords to mitigate their risk.

      You know we have to find case law for every argument we want to rely on if there is any doubt about the interpretation of law. Yet you say “nonsense”, put your money where your mouth is, find a single example, just one.

      Now let me explain WHY it is YOU that are talking nonsense.

      WHO creates the tenancy agreement and write the terms therein? The Landlord!

      WHO put terms in the tenancy that only provide the bare minimum required by law in terms of Landlord obligations? The Landlord!

      Who has a Tenant sign the agreement, effectively under duress at risk of losing the property? The Landlord.

      The reality is that the Tenant MIGHT get away with crossing out an odious term but overall the tenant has a choice, sign it or else I will get someone else that will.

      When did you ever see a contract that said a Landlord would ensure mould from external wall would be dealt with? When did you see a term that stipulated Landlord response for things outside the law?

      NO, what happens is that Landlords abuse Tenants to the point that the Government has to bring in a law to regulate them.

      Examples:

      Deposit Protection (4 laws and a plethora of case law)
      Fitness for habitation
      Tenant Fees

      I could go on.

      The revisions to the Acts were required because Landlords not only failed in their legal obligations but then went on to try and circumvent the sanctions for their failure, for example they used to return the deposit in Court before or during hearing even, until that loophole was tightened up.

      Even with the regulation we have, I have seen tenancy agreements that say if payment is late at all the Landlord may evict the tenant in 3 days. The legally ignorant believes this unfair contract term, they do not know that they can’t be evicted without a Court Order.

      My point being that the Landlord always has the upper hand, the tenant has very few terms to use for the repudiation you refer to, so they have to depend on the laws that have been created to protect them from widespread abuse.

  34. Me giving examples of something you don’t accept exists conceptually anyway would be a pointless exercise on my behalf. Surely that’s obvious.

    • Martin – as I said, my view any breach would have to amount to a significantly serious breach, whether it was cumulative or not. That is the point of the case you first pointed to. It would have to go to the core of the contract and not be remediable in damages alone. You appear to think otherwise. Offering examples is how one goes about supporting a position and potentially persuading the other person…

  35. You questioned whether what I said (about persistent breaches) was legally correct and asked for case law in support. I provided you with that case law. Asking for examples of the facts to which the case law could apply, isn’t relevant to whether the legal principle and supporting case law exists.
    If you don’t understand that, I give up.

    • In order:

      Martin “If a landlord fails in its obligations, a tenant can leave and rent a different property.”
      Me “of course the tenant can’t leave. They are stuck with the contract, remember.”
      Martin “If a landlord persistently fails in its obligations then a tenant can terminate the tenancy and leave before the expiry of the term. ”
      Me “the tenant can’t just leave before the expiry of the term, regardless of whether the landlord fails in their obligations. Please point me at any legal provision that allows that, or any case law. Any at all.”
      Martin – link to commentary on Rice v Yarborough
      Me “Repudiatory breach? That only works where a fundamental of the contract has not been performed. In a tenancy that would have to be something as drastic as, well, not actually providing the dwelling. And even then, tenant can just walk away, unless landlord agrees, they have to go to court.”
      Martin “If you read the case you will see that the court accepted that persistent breaches of non fundamental terms can amount to a repudiatory breach of contract.”
      Me “No, it didn’t. Still substantial benefit test. From your link.. (2) In construing whether the breaches of multiple obligations entitle an innocent party to terminate depends on whether the breach deprived the innocent party of the substantial benefit of the contract. In this case, the cumulative breaches do not justify an inference that the contractor would be depriving the council of a substantial benefit of the totality of the four-year contract, and thus cannot be considered repudiatory. Accordingly, there was no right to terminate.”

      And there we have it. That is the point you are still refusing to deal with. Cumulative breaches still have to amount to deprivation of substantial benefit of the contract. The issue isn’t whether cumulative (or persistent, make your mind up) breaches can amount to a repudiatory breach, they can, of course, it is whether those breaches amount to deprivation of substantial benefit of contract. The fact that the breaches are cumulative (or persistent) is, itself, neither here nor there.

      Martin (missing the point) “If the persistent breaches are cumulatively sufficiently serious the tenant can walk away. If you believe otherwise we are going to have to agree to disagree.”

      Me “Go on then. What breaches by a landlord would you say amounted to a repudiatory breach of contract? I await with interest.”

      Note, not asking about cumulative (or persistent – and that is really not the same thing) breaches, asking what you would say would amount to a repudiatory breach.

      Your whole point (now heavily qualified) was that a tenant can walk away if a landlord fails in its obligations. And yet you have refused throughout to say what you think would amount to such a repudiatory breach (whether one-off, cumulative or persistent).

      So, put up or let it go. What would be a repudiatory breach by a landlord, in your view? One that goes to the core of the contract and removes the substantial benefit of the contract to the tenant. One that is not otherwise suitable for compensation in damages.

    • “I give up”.

      Hurrah!

      You have totally failed to supply any evidence for your assertion, and have ridiculed the suggestion that any should be provided. This suggests that you do not understand how the law (and the rest of civilised life) works.

  36. Giles

    You say:

    “Martin (missing the point) “If the persistent breaches are cumulatively sufficiently serious the tenant can walk away. If you believe otherwise we are going to have to agree to disagree.””

    – but your latest missive amounts to the same thing – so you actually agree with me!

    I seems therefore that what you are really saying to me is: Martin, your legal analysis is correct, but I don’t think that in practice a lease would contain the type of covenants which would allow the relevant legal test to be satisfied.

    It would have saved a lot of bother if you had just said that….

    Michael

    Thank you for your contribution. I said I would give up if Giles didn’t understand the difference between legal and factual argument – so celebrating me giving up means you think it has been shown that he didn’t. Actually I think you are wrong and he does understand the difference – but I can see why you may have reached the conclusion you did.

    Anyway, I think that we have taken this debate as far as we usefully can. In fact it has gone well beyond that. So I’m going to stop clogging up what I am sure is a valuable forum: whatever now follows on. And Michael – I will be cheering louder than you, or anybody else for that matter, about that.

    • Martin, this is deeply tedious. All that matters is whether a breach is sufficiently significant, etc.. Cumulative, persistent or however you want to describe it, is a complete red herring. It simply doesn’t matter. Now, either come up with an example of a landlord breach that you say is a repudiatory breach, (short of a failure to provide the property, which I’ve said would be one) or just accept that your line about ‘tenant can walk away on landlord breach’ was complete and utter guff.

  37. Sorry Giles, everything’s already been said – and I’m a man of my word. Time to think of others.

  38. Martin

    You have been entertaining in making a complete and utter fool of yourself.

    Lawyers and Barristers go into Court every day, they have an argument they wish the Judge to consider.

    They cannot make it up

    They cannot quote a post on the Internet that actually contradicts the very point they were hoping to rely upon

    They cannot just say “I am right because I know I am right”

    They cannot just agree to differ

    They either have to put up a Law or Case Law, then the Judge has to consider the relevance, interpretation and fairness of that law.

    OTHERWISE THEY LOSE not just the case but potentially their reputation.

    If you want to understand more about this process have a read of the many excellent cases profiled on this blog, Giles explains the decision, what it means and why the Judges may have come down on one side or the other and he even says when he thinks they got things wrong.

    What you demonstrate it the danger of belligerent argument based on a Google search with a result that you THINK proves your point but that is not only not relevant but actually works against the point you were trying to make.

    I actually had a client who tried the repudiation avenue, they lived in a house where the gutter was not cleared regularly, they wrote me 10,000 word emails on why the Landlord was at fault and every time I tried to bring it down to concise legal arguments they fired off another tome. Eventually I just had to give advice that they were flogging a dead horse and bow out.

    The fact is that the law WILL be changed and you are clearly the type of Landlord that will try to wriggle out of the responsibility. You will not sell up because of that eye watering stamp duty, you might put rent up but probably end up with a big void. You will not be able to increase the deposit beyond six weeks soon.

    So what do you do?

    Get professional, mitigate your risk with insurance and proper tenant referencing. That will deal with the risk of rent arrears but I suspect that you just want CONTROL and power to evict who you want when you want.

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