And why they are unlikely to work
Retaliatory eviction has been a problem for many years. How big a problem nobody knows – probably less than Shelter and the other tenants associations make it out to be but more than the landlord associations claim.
In response to this, the government have now added new anti-retaliatory protection for tenants to the statute book. But is it really going to be any help?
Why retaliatory eviction works
The reason why retaliatory eviction works is because if the tenant is going to be evicted, there is not a lot of point in proceeding with their claim.
- Any legal aid obtained (if you can still get legal aid for this) will probably be stopped
- No win no fee agreements will not be available
So are these new rules going to help with this? Here are three big reasons why they won’t
1. They are dependent upon Local Authority Environmental Health Officers serving a notice
If no notice is served – the landlord can retaliate with impunity.
Are Local Authorities going to be serving notices? Well, they haven’t done so much in the past. It’s been a bit of a scandal. With funding being cut to the bone and Council staff being shed daily, the chances are that things are not going to change much any time soon.
2. Claims will normally take longer than eight months
Even if the Local Authority does serve a notice and the landlord is debarred from using section 21 – this is only for the next six months. So if the notice is served in January – he will be able to serve his notice in July and start eviction proceedings in September.
It is unlikely that (unless it is settled) a disrepair claim will have concluded by then. This is what has to happen
- The case needs to be investigated by solicitors and surveyors sent out to see if it is worth pursuing
- The pre-action protocol will need to be complied with, which involves the tenant sending out a letter of claim
- The landlord then has 20 days in which to respond after which
- Any offer made by the landlord will need to be considered and
- A joint expert will need to be instructed to prepare a report
All of that will take several months and the case has not even started yet!
Then if the claim is to go ahead it will need to be drafted and issued, the defendants will need to file their defence and all the procedural issues relating to service of documents, witness statements and the like will need to be dealt with before the case can be set down for trial.
Before all that has finished it will be July, and the landlord will be able to serve his section 21 notice.
Even if the case has finished by then – do you think the landlord will refrain from evicting his ‘troublemaker tenants’ anyway after September? No, neither do I.
3. There is no guarantee that the claim will be paid
Before starting the long and expensive business of bringing a claim, you need to be sure that your defendant will be in a position to pay it.
There is no such guarantee with private landlords. Although they will have at least one asset – the rented property – in many cases this will be mortgaged up to the hilt.
This is the reason why solicitors will almost always be willing to take a gamble on a no win no fee claim against a Local Authority or Housing Association (where you can, at least, be sure that you will get paid eventually if you win) – but not against a private landlord.
It’s one thing to gamble on whether you are going to win or not.
But with a private landlord the solicitors are taking two gambles –
- winning the claim and
- getting paid at the end of it.
Not surprisingly their answer is invariably ‘no thanks’.
So what can be done about it?
There needs to be a balance struck between the interests of the landlord and the interest of the tenant. I am not convinced that anti retaliatory eviction legislation is the answer.
One other solution could be by introducing mandatory insurance for all landlords. Like with motorists. Then there could be an arrangement with insurers that they would back claims against uninsured landlords in a similar way to the arrangements for claims against uninsured drivers.
A solution like this is the only way I can see that claims could be brought against private landlords whose properties are in poor repair.
What do you think?