31/12/2019

Sibylla*

2020 then. The years keep coming, with uncaring relentlessness. Still, putting a brave face on it, I shall combine the roles of soothsayer and almanac for what is likely to be a busy year for housing law.

First, the things that we know will happen and when.

January – The Court of Appeal hears the Secretary of State’s appeal in JCWI v SSHoD, (first instance decision here), in which the Govt seeks to overturn the finding that the ‘right to rent’ scheme was unjustifiably discriminatory. Judgment to follow.

January – The Court of Appeal hears the landlord’s appeal from the first appeal decision in Trecarrell House Limited v Rouncefield (our report here), on the impact of failing to provide a gas safety certificate at the beginning of the tenancy on being able to serve a section 21 notice. Judgment to follow.

March – On 20 March 2020, the Homes (Fitness for Human Habitation) Act 2018 provisions – the amended s.9A, 9B and 10 of Landlord and Tenant Act 1985 – will apply to all periodic tenancies that existed before 20 March 2019. As the provisions have applied to all new, renewal, or newly periodic tenancies after a fixed term, arising on or after 20 March 2019, by 20 March 2020, the provisions will apply to all private and social tenancies save those few that are on a fixed term that began before 20 March 2019 and which will still be on the fixed term.

April – On 1 April 2020, the ‘Minimum Level of Energy Efficiency’ standard will apply to all residential properties which are let on existing assured shorthold or fully assured tenancies, regulated tenancies or domestic agricultural tenancies, so long as they are legally required to have an EPC. If the property has an F or G EPC rating the landlord must improve the property rating to E by 1 April 2020 or register an exemption. In some circumstances landlords will be required to spend up to £3,500 on energy efficiency improvements if they wish to register an exemption.

June – From 1 June 2020 the Tenant Fees Act 2019 will apply to all existing tenancies. So, any deposits in excess of 5 weeks rent must be partially refunded to tenants (deposits over 5 weeks must be refunded on renewal of a pre 1 June 2019 tenancy after 1 June 2019), and any provisions in a tenancy agreement for – for example – check out fees will cease to be valid. All tenant fees end on 1 June 2020.

Then there are the likely things but where details and timescales are unknown.

The big one – the Tenancy Reform Bill trailed in the Queen’s Speech. At issue is the removal of section 21 and reform of the Schedule 2 Housing Act 1988 grounds of possession. Heaven knows what will be in this one and when it will appear, though I would expect the bill to begin in 2020. Everyone will be on the watch for this, and there will be the risk of so, so many unintended consequences.

Also vaguely trailed in the Queen’s Speech and in the Minister’s comments was leasehold reform. What is apparently proposed is a) a ban on leasehold houses unless necessary (?) and b) all ground rents on new leases to be set at a peppercorn. Both good steps, but again the devil will be in the detail.

There is, of course, complete silence on the whole cladding mess that is seeing some leaseholders face bills of many tens of thousands of pounds, and literally hundreds of thousands of leasehold flats unsaleable and un-remortgageable.

There is also, it seems, little or nothing for existing leaseholders, save for the vague promise of a new easier way to challenge fees and charges (but what that means is as yet very unclear).

Meanwhile, s.106 planning requirements will be diverted away from providing social housing to providing a 30% discount on market price for ‘local’ first time buyers. Heaven knows how this will work, but it will certainly mean less affordable rented accommodation, so is a Bad Thing.

Electrical safety – at some point in 2020 regulations are likely to be introduced requiring 5 yearly electrical safety checks, initially for new tenancies only. Penalties for non compliance will have to be seen.

And the HMO minimum room size standards, which came in on 1 October 2018 for new licences (with up to 18 months to comply) will continue to roll out, as licences are renewed and compliance periods expire.

Plus, apparently there will be a social tenancies White Paper. Whether this will follow on from the previous Green Paper and what might be in it, and whether that will lead to anything is anyone’s guess, but hey, it is something else to worry about.

It will be a busy and potentially complex and difficult year. But I’ll lay money that homelessness will continue to rise, and that affordable accommodation will be ever scarcer. There will be other things that crop up – I rather suspect property guardians will be an issue during the year, for instance – but this is what we currently know…

And we will have to write it all up.

Cumaean Sybil

Happy new year, if you can possibly have one.

*The classical greek prophetesses.

 

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.

11 Comments

  1. Peter Williams

    In relation to the Tenancy Reform Bill trailed in the Queen’s Speech which you mention, a draft Bill called the Rented Homes Bill was introduced into the House of Lords on 28 October 2019, four days after the general election was called on 24 October 2019. A PDF copy is available from a link on this page of the Parliament website —

    https://services.parliament.uk/Bills/2019-19/rentedhomes.html

    The consultation on abolishing section 21 did not close until 12 October, which supports the general assumptionthat when the government consults on a proposal, that’s what it is intending to do regardless of the responses that it receives to the consultation.

    Reply
    • Giles Peaker

      That was a Lib Dem peer’s private bill. It fell with the election and no longer exists.

  2. Phill Warren

    “deposits over 5 weeks must be refunded on renewal of a pre 1 June 2019 tenancy after 1 June 2019” – Shouldn’t that be 1 June 2020?

    Reply
    • Giles Peaker

      No, as the TFA applies to any ‘renewal’ tenancy after 1 June 2019.

  3. Ben Reeve-Lewis

    Is there any indication that any of the concepts from Baroness Grender’s bill might survive? It occurred to me when I first read it that the concept of no fault evictions isnt really being swept away at all, just morphing over into the grounds for eviction with some firming up of the procedures on service of pre-notices, which to be honest I dont have a problem with at first glance

    Reply
    • Giles Peaker

      I think it was always going to be a trade off between no s.21, but revised/additional grounds. As far as I can see, the Grender Bill more or less imported the additional grounds from the Scottish version. I’d expect something similar to crop up in the new Bill.

    • Michael Barnes

      S21 is not “no fault” eviction.

      It is a “no reason need be given for landlord to regain possession” process.

      The proposal is to replace it with additional S8 grounds (some of which are already “no fault”) so that a reason must always be given.

    • Giles Peaker

      S.21 is many things, including no fault eviction. I think that additional s.8 grounds are likely. We will have to see.

  4. Ben Reeve-Lewis

    Do you think its possible they might transfer the Deregulation Act, deposit protection regulation and licensing provisions onto s8? where all the things that currently invalidate a s21 would apply to s8? That would be something to worry landlords more than losing s21.

    Reply
    • Giles Peaker

      It might be that. Or maybe just a straight financial penalty. Or maybe something else. It is going to be a challenge.

  5. Howard

    My main concern is the likelihood of new legislation applying to all existing tenants rather than at the next renewal or no contract event. This would give no time to evict risky tenants who would be a problem in the longer term. So the alternative is to evict or not renew now and wait to see what happens. Thats is you don’t mind losing rent for a while.

    Reply

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