There has been a fair amount in the press recently about landlord and tenant law, what with debates in the commons and Ed Milliband’s speech and all.
While doing my ‘bigger picture‘ series last year I changed my mind about a number of things and came to some conclusions. For example – longer fixed terms:
- Some tenants want them but others don’t – so they should not be imposed on all tenants ‘willy nilly’
- It is unfair to expect landlords and lenders to commit to longer fixed terms if there is no quick eviction procedure for tenants in arrears of rent
It is desirable though, that some tenants be able to have longer fixed terms – for example families with children at school and older tenants who want stability and security in their home. It is also better for society if people are able to put down roots in their community – which they can’t do if they are at risk of being moved on every six months.
The eviction procedure problem
At present it can take up to six months or more to evict a tenant for rent arrears. If there is a genuine dispute about the arrears (for example if the property is in disrepair) then this may be fair enough. It takes time to resolve such disputes properly.
However if there is NO dispute, it is grossly unfair on landlords to force them to continue to house non paying tenants free of charge – sometimes for many months.
Add to the time it takes to get a possession order, the four to ten weeks it can take to actually evict tenants from the property via the bailiffs after the order has been made, and you can have arrears figures running into many thousands of pounds. In my experience it is rare for landlords to recover unpaid rent from defaulting tenants after they have been evicted.
The procedure for eviction for rent arrears is also uncertain – it is vulnerable to tenants putting in flimsy defences which, if accepted by the Judge (and it may often be hard from them to completely disregard a defence which might be arguable) can increase the time it takes to obtain a possession order by several months.
In short – the rent arrears procedure is time consuming and uncertain – even for clear cases
The only certain route to eviction (and the only certain way to evict unsatisfactory tenants) is the section 21 procedure – which is ONLY available to landlords after the fixed term has ended.
Which means it is against a landlord’s interests to give any fixed term of more than six months, or a year at most.
Lenders are never going to agree to longer fixed term under these circumstances.
So my view now is that if we want longer fixed terms to be available for tenants, urgent attention should be given to the court eviction procedure.
Suggested amendments to the eviction procedure
One solution is to introduce a new more certain eviction procedure for undisputed rent arrears cases. Here are some suggestions
1. The current accelerated procedure where orders are made without a hearing based on the paperwork submitted, should be extended to standard rent arrears claims where the rent arrears are eight weeks / two months worth or more
2. The landlord should be required to provide the court with a copy of the current tenancy agreement plus a schedule of rent arrears which should be certified by a statement of truth
3. If there is no defence from the tenant, a 14 day order should be made by the Judge as a matter of course
4. Landlords should be allowed to instruct the court bailiff immediately the court order is made (or perhaps even send the fee and form in with the application for possession to be dealt with if the order is made), the bailiffs appointment to be not less than two weeks after the order is made
5. The tenant should be entitled to defend the claim provided either the rent arrears in dispute are paid to the landlord or paid into court (or maybe if the court does not want this administration, the banks could provide this as a service) to abide the event,
OR provided they are able to prove that they have paid an equivalent sum out in respect of repair work to the property which falls under the landlords statutory repairing obligations.
6. If the tenant is able to fulfil these requirements, the case should be set down for hearing and proceed as normal.
This should speed things up considerably and the landlord might be able to get the tenant out within two months. As there would be fewer hearings it would also involve less court time, which could be a big bonus for the courts.
Longer fixed terms
Assuming there is a fast track rent arrears eviction procedure, I would suggest that tenants who have been in occupation for a specific period of time, say 12 months, with no rent arrears, be entitled to ‘buy’ a longer fixed term from their landlord with a premium payment (which are allowed under the Housing Act 1988).
The premium payment could be prescribed by some formula related perhaps to the rent, the length of the fixed term being bought and the retail price index. There is no need for it to be for thousands of pounds as in long leases – it could be something like £250-500.
This would allow tenants to buy a fixed term of say two to five years. Which would give them security of tenure, for example during their child’s schooling.
However tenants who did not want a longer fixed term (and there are many tenants who don’t), would not be forced into them. They could just continue as now.
These are just ideas and there may be problems in practice, but I don’t see why something like this shouldn’t work. What do you think?