With the introduction of of the new grounds of possession looming – 1 May 2026 – we are very pleased to bring you as a seasonal gift this guest post by Nick Bano, barrister, and Jamie McGowan, pupil, of Garden Court Chambers, helpfully looking at the routes to redress for abuse of those grounds and their merits.
One of the great controversies during the passage of the Renters’ Rights Act was the question of safeguards against landlords abusing the new grounds for possession. If a landlord evicts a tenant on the basis that they intend to sell up, move in, or instal a family member, and then re-lets the property (probably at a higher rent), what redress will tenants have?
The Act contains its own new safeguards, with a beefed-up regime for rent repayment orders in the First-tier Tribunal. What is interesting, though, is that these kinds of problem were actually tackled long ago: in 1920 Parliament created a statutory tort, which entitled tenants to sue for damages if the landlord obtained a possession order by deception. This has remained in force under various statutes ever since, and it now hides in plain sight under section 12 of the Housing Act 1988.
The new mechanisms and the old statutory tort will now exist in parallel, and in this post we set out the pros and cons of each. There are also new powers for local authorities (fines and prosecutions) but we are going to concentrate on the mechanisms available to tenants and their advisers.
Rent repayment orders under the RRA
One of the aims of the RRA was to substantially bolster the tribunal’s powers to make RROs. Most significantly, these orders will now be available against superior landlords to fix the Rakusen v Jepsen problem (our note), and the maximum amount of an order will increase from one year to two years’ rent.
The basic principle of the redress scheme under the RRA is that tenants can make use of this improved RRO regime where the landlord abuses possession grounds. Tenants will be able to apply to the Tribunal when a landlord has committed one of six new criminal offences, two of which relate to obtaining possession:
- When the landlord re-lets or markets a property within a 12-month ‘restricted period’ after obtaining possession under Ground 1 or 1A (contrary to the new section 16J(2) of the 1988 Act);
- When the tenant surrenders a tenancy within 4 months of a landlord misusing a possession ground (contrary to the new section 16J(1) of the 1988 Act).
For the purposes of the ‘re-letting’ offence, the 12-month prohibition starts when the landlord serves (or purports to serve) a section 8 notice relying on grounds 1 or 1A, or when a claim form or particulars of claim is filed (new section 16M of the 1988 Act).
The new ‘re-letting’ offence will tend to be committed after the tenants have already left the property, either by leaving voluntarily in response to the landlord giving notice, or by leaving because a possession order has been made. But this is not a requirement: some landlords might be foolish enough to market the property before the tenant has left, and the RRA makes it clear that this situation is also caught by the new offence (16E(4) of the 1988 Act).
If a tenant discovers that their landlord or former landlord has committed the re-letting offence, they can apply to the tribunal for an RRO (section 40(3) of the Housing and Planning Act 2016). But, for many tenants, finding out about the offence is going to be the first hurdle. In all but the most flagrant and obvious cases, tenants are going to have to wait a year, and then try to find out whether the property has been re-let or marketed during that restricted period.
It is to be hoped that the new Private Rented Sector Database will help tenants to find out if their former landlords have committed the re-letting offence. But the RRA has left the details of the database to the Secretary of State to determine.
When, however, the tenant has found out that the property has been marketed or re-let during the 12 months, these applications should be relatively easy to determine because it appears to be a strict liability offence. There is a statutory defence available to those who commit the offence “otherwise than as a landlord” (e.g. lettings agents), but in cases involving offences by landlords, tenants simply need to prove that the property was marketed or re-let during the prohibited period.
There are various other exceptions (set out in section 16F) which landlords themselves can raise as statutory defences, (e.g. that the new letting was to a landlord’s family member, or occupation by an imminent purchaser of the property). In cases where those defences are raised, there may be a more wide-ranging factual dispute. Otherwise, there is very little that needs to be proved.
As to the ‘misuse of a possession ground’ offence, this will be committed when:
- The landlord serves (or purports to serve) a section 8 notice, or files a claim form or particulars of claim;
- The landlord was not entitled to rely on the ground(s) for possession that they cited (note that this is not limited to Grounds 1 and 1A – it applies to any ground);
- The landlord knew or was reckless as to the fact that they were not entitled to rely on the ground(s); and
- The tenant surrenders the tenancy within 4 months.
The key difficulty here is that tenants will have to prove (to the criminal standard) the landlord’s mens rea (the “knowingly or recklessly” requirement). It will not be enough to simply show that a landlord relied on a possession ground which it later emerges they were not entitled to.
It is also important to note that this ‘misuse’ offence is only committed if a tenant surrenders the tenancy voluntarily within four months. If the tenant leaves because a possession order has been made, this particular offence would not be made out even if the landlord had been entirely dishonest about the reason for seeking possession.
Claims for damages under s.12
Section 12 of the 1988 Act creates a statutory tort and a jurisdiction to award damages to the tenant where the landlord has abused the grounds for possession. It is made out in when:
- The landlord has obtained an order for possession; and
- It is subsequently “made to appear to the court” that the order was obtained by misrepresentation or concealment of material facts.
Despite being on the statute books in one form or another for more than 100 years, this provision has fallen out of use. That was (no doubt) because most landlords with assured shorthold tenants have been evicting them using section 21, which tends to be far easier than misusing the Schedule 2 grounds for possession.
Unlike the RRO jurisdiction, this is a purely civil matter, and so the ordinary civil standard of proof applies.
There are some old authorities that consider the statutory predecessors to section 12. In Thorne v Smith [1947] KB 307, for example, the landlord had pleaded a ground 1-type ‘returning owner occupier’ case in respect of a pre-Rent Acts tenancy. The tenant gave up possession by agreement because he had been advised that it was hopeless to defend the claim, but the landlord then immediately sold the house. The tenant successfully sued for damages.
Awards of damages can be very significant indeed. They are awarded on the basis of tort law principles: see the surprisingly recent case of Clements v Simmonds (unrep.) (2002) EWHC 1652 (QB), per Burton J at (44). In that case the landlord sold the building with vacant possession for £1.5m (again, having pleaded a Rent Act ‘returning owner-occupier’ ground, and then selling up immediately afterwards) and the tenant’s damages for her loss of a controlled tenancy were assessed at £60,000. Adjusting for inflation, and applying a Simmons v Castle uplift, that would be worth over £150,000 today.
It is true that the tenant in Clements had lost a tenancy with a controlled rent, and damages may well be lower under the current de-controlled regime. But it is clear from Clements, Thorne and judicial comments in illegal eviction cases that the loss of a fully assured tenancy is a serious matter. Damages can be high, particularly when compared to the two-year maximum of an RRO (on today’s average rents, a two-year order would be worth about £33,000, and the tenant is not entitled to an award for any part of the rent that was paid by housing benefits).
Comment and comparison
There will be pros and cons of both options to consider in every case.
On the one-hand, RROs present the upfront hurdle of the criminal standard of proof. However, the Upper Tribunal has cautioned the FTT against being over-zealous in its application and pointed out that “it is legitimate to draw inferences from proven circumstances, under the criminal standard of proof as under the civil standard” (Mortimer & Ors v Calcagano (2020) UKUT 0122 (LC) at (35)). If the evidence is strong enough, RROs can be relatively simple. And, while the lower civil standard of proof applies to section 12 claims, tenants will have to prove something much more nebulous and difficult-to-uncover: misrepresentation or concealment, rather than the solid facts that give rise to the statutory offences.
When it comes to quantum the FTT tends to ‘shoot from the hip’ (in line with the Upper Tribunal’s characterisation of RROs as “blunt instruments” in Daff v Gyalui at (58)). But even that approach may give more certainty than a section 12 claim under the current legislative framework: these are going to be adventurous claims until the first few cases are decided.
A further advantage of the FTT is that it is a comparatively relaxed procedural jurisdiction. Section 12 claims, by comparison, are likely to have the ‘feel’ of illegal eviction claims: highly contentious civil litigation, with all of its procedural rigour and expense, and against lay and professional opponents with varying levels of competence.
Set against that, the possibility of costs recovery in the County Court (or possibly even the High Court, if the tenant’s case is that the Clements approach to damages should be followed) means that section 12 claims are far more viable for CFA funding than RROs.
In some circumstances, it may be possible to pursue both an RRO for a ‘re-letting’ offence and a section 12 claim in relation to the same repossession. RROs are penal in nature, whereas section 12 claims are for damages in tort, so the landlord cannot argue against double-recovery (Ficcara v James (2021) UKUT 0038 (LC) and Daff v Gyalui (2023) UKUT 134 (LC) at (58)). It may even be possible to ask the FTT judge to ‘double hat’ as a County Court judge, and hear both matters together (Kowalek v Hassanein Limited (2022) EWCA Civ 104 at (34)).
A tenant could not, however, bring a section 12 claim together with a tribunal claim for the ‘misuse’ offence because they are mutually exclusive: section 12 only arises after a possession order has been made, but section 16J(1) requires the tenant to have surrendered the tenancy.
It is important to note that the limitation period for applying for an RRO is currently 12 months, which will become two years when clause 98 of the RRA comes into force. In cases where limitation is approaching, it may be sensible to apply for an RRO as soon as possible and then consider applying for a stay while engaging in any necessary pre-action conduct in respect of any civil claim.
One of the great harms of the 1988 Act was that landlords came to treat tenancies (and tenants) as disposable, single-use things. It would be a mistake for landlords to carry this attitude over into the new statutory regime. From now on, ending tenancies by sharp practice could be financially ruinous for landlords.
Nick Bano is a barrister, and Jamie McGowan, is a housing specialist pupil, at Garden Court Chambers.