Eviction law and landlords
Although many people still tend to speak of landlords and Rackman in the same breath, in fact this is often very far from the truth. Most landlords are law abiding and care deeply about their properties and their tenants.
This is why it can be so devastating when they have a bad tenant. I have known landlords lose thousands of pounds through trusting tenants and being nice to them. The tenants then fail to pay, or move out, when they said they would, and the landlord then has to start the long eviction process – which would have been partly finished had they not listened to and believed the tenants. Losing money all the while.
It can be even worse for owner landlords – they may be all ready to move back into their home, only to find that they can’t get in and have to find alternative accommodation for three months or so while the possession proceedings worth their way through the system.
A law change for quicker eviction?
It is this situation which has prompted some (partly as a result of the Suzy Butler case) to call for a change in the law to allow landlords to get their properties back quicker in these two circumstances. An online petition has also been launched.
I fear however that this is not going to do much good.
Why changing the law won’t help
Drafting legislation is exceedingly difficult. The draftsman has to consider all possible situations and provide for them in a fair way. ‘Kneejerk’ legislation brought in, in a hurry, as a sop to the public to deal with a perceived injustice, can have unforeseen and unwelcome consequences.
For example I can see a system where landlords can get possession without having to go to court, being welcomed by the criminal landlords with open arms!
Evicting a tenant is a very serious matter – someone, perhaps with children, is at risk of losing their home. This can only be done after ‘due process’ and after giving the tenant a chance to put their side of the story.
The current eviction process explained
The current law is not too bad for landlords. For an assured shorthold tenancy, landlords only have to give two weeks notice of issuing proceedings once the tenant is in arrears of two months. If the tenancy is a common law one, the landlord can issue proceedings to forfeit the tenancy for non payment of rent without giving any notice at all.
The problem is the time it takes to get a case through the courts.
It would be most unfair if a landlord was allowed to evict a tenant just on providing proof of the arrears. For example:
The tenant may have a genuine defence. The landlords records may be incorrect, or the tenant may dispute the validity of a recent rent increase. Or the rent may not be due at all due to the landlords failure to comply with s48 of the Landlord and Tenant Act 1987 (as discussed by Ben Reeve Lawis here).
The tenant may have a genuine counterclaim. The property may be in poor repair (in breach of the landlords repairing obligations), the tenant may be entitled to the penalty award if the tenancy deposit has not been protected, or have a claim for compensation for harassment.
The system must allow a period of time for the tenant to seek legal advice and file a defence if any of these situations apply. The current rules (CPR 55.5(3)) say:
(a) the hearing date will be not less than 28 days from the date of issue of the claim form;
(b) the standard period between the issue of the claim form and the hearing will be not more than 8 weeks; and
(c) the defendant must be served with the claim form and particulars of claim not less than 21 days before the hearing date.
The reasoning works that you allow 7 days for the forms to be sent after issue. Then the tenant has not less than 21 days before the court hearing to seek advice and (if necessary) arrange for representation. These are not actually very long periods of time, particularly bearing in mind that you are dealing with people’s homes.
However it is very rare indeed for a hearing to take place 28 days after issue. The vast majority of cases are listed 8 weeks after issue, sometimes longer. Why can’t the hearings be listed quicker? This is a resources rather than a legal problem.
The real problem
Most courts are heavily underfunded. To list all hearings quickly would take more judges. But a Judge’s time is expensive. In the current economic climate the justice system is way down in the pecking order for funding, certainly so far as civil cases are concerned.
I think we can take it as read that the situation is not going to improve in the near future, and is more likely to become considerably worse. A change in the law will not help this.
Points on the petition
A few words on the proposals set out in the petition.
1) Speed up the eviction process (once the tenant is two months in arrears the landlord would need to provide proof that this is the case and after which time the tenant can be removed with a two week eviction notice).
This would remove the tenants right to defend, which as I explain above, would be unfair. He may have a genuine defence.
At present the court process can take up to seven months. All documentation would be checked and verified prior to initiation of recovery and eviction process bringing the law more into line with current commercial property law
Who would do the checking? To justify removing someone from their home (a very serious matter), this would need to be checked by a Judge. Even if the system were changed to allow Judges to make decisions on the paperwork alone for undefended cases (as happens now with the accelerated procedure for s21 claims), you still have the problem of lack of resources and Judge’s time.
Residential property is not like commercial property and cannot be treated in the same way. The legal system (quite rightly) takes the view that a court order must be made by a Judge before someone can be evicted from their home.
To sum up – things are unlikely to change because:
- You have to allow time for genuine defences to be raised
- Most delays are due to court resources not the law
- The current government have indicated that they are not going to change things anyway
But what to you think? Do you think tenants rights are too strong? Is there any way the courts could be made to list hearings quicker?
As with any industry, there are good landlords and rogue landlords. However, it is usually the genuine, law abiding landlords who suffer most at the hands of the “law” and “bad tenants”. Why should a landlord have to suffer 2 months of unpaid rent before any action to recover property can begin? Why should the landlord be forced to subsidise the non-paying tenant, whatever the grievance? And let’s not forget the mortgage still needs to be paid even though there is no income from the investment property. Where is the landlord’s rights in that respect? Not all landlords have £££s coming out of their ears,. Most are normal hardworking folk who also have their own bills to pay. Adding the tenants bills to it is unfair. Tenants ought to be trained on how to be good tenants, on the finer points of their rights AND responsibilities, and on how to deal properly with issues they might have with their landlords. As it is, in my view, the law encourages them to be bad and to get away with it. I know – I deal with them all the time.
Tumi I absolutely agree with your comments about most landlords being genuine and law abiding and that they have to suffer because of the rogue landlords and if you could create a law or just a system that could seperate the 2 I would be the first to champion it.
That is effectively what the Rugg Recommendations were all about and it is depressing that the coalition government shelved it.
The trouble is you would be amazed at how many rogue landlords there are still out there.
In the past year I have had to deal with a landlord who stabbed his tenant in the neck over a rent dispute, a landlord who broke his tenant’s finger’s when he tried to call the police for help, a landlord who pulled a gun on his tenant to persuade him to move out, a landlord who changed the locks on a woman and 3 children when it was snowing back in January and in the past I even dealt with a landlord who cut the throat of a tenant who complained to me and tried to cut his girlfriend’s ear off before she managed to break free.
I have posted elsewhere that letting properties carries a risk for your investment, thats just the way it is.
And on a procedural note you dont have to wait 2 months before serving notice for rent arrears, rent arrears grounds 8, 10 and 11 are all 2 week grounds.
Hi Tessa, I think these cases do need looking at by a judge, as you say there may be a disagreement between the landlord and tenant.
Another cause for disagreement may be late rent fees. e.g. where the contract has a clause of a £15 a day late rent fee. This could mean the landlord is asking a tenant for much more than the actual rent owed.
Also in a recession it’s recognised that homeowners can fall behind with mortgage payments yet all that’s possible is done to keep them in their homes. There’s even a Private Member’s Bill from George Eustice, MP for Camborne and Redruth to “rebalance the law, making it harder for banks to enforce their security and throw people out of their homes.” Contrast that to the press reaction in the Suzy Butler case and the support she claims to have from Mike Weatherley, MP for Hove and Portslade for her wanting to rebalance the law to speed up the eviction process for tenants. One could be forgiven for thinking tenants don’t qualify as people these days.
Hi Anna, thanks for your comment.
A penalty payment like that would probaby be void under the Unfair Terms and Consumer Contracts Regulations (see here http://www.landlordlawblog.co.uk/2010/05/18/tenancy-agreements-31-days-of-tips-day-18-penalty-clauses/). So the tenant could refuse to pay and the landlord would not be able to evict on tbe basis of its non payment, or claim it in a CCJ.
The Suzy Butler case is unusual in that all the sympathy (in the press anyway) seems to be for the landlord. They are right in saying that it is unfair on owner occupier landlords expecting to move back into their homes, but life is not fair!
Thanks Tessa, I see such a penalty payment term is probably void but when the landlord is including it in what she claims the tenant owes it’s another reason why the landlord’s record of rent owed may be wrong, does she count a payment the tenant makes to be towards the rent arrears or the penalty she thinks accrued? Yet another reason why a tenant needs to be able to file a defence and why I’d be worried about any changes that shortcut this.
As for fairness, arguably a landlord is a business. Regrettably many small business have cash flow problems in a recession when their customers are unable to pay, or pay on time, possibly not through “being bad” themselves but by being let down in turn. Tenants are equally likely to be losing their jobs as anyone else. I’m not sure landlords should be able to jump the queue of any other small business taking court action. I’m not sure that tenants in financial difficulties are worse than owner occupiers also in that situation, yet one group seems to be demonised.
One good point in Suzy’s change is I assume she intends the “owner occupier landlord” would have to declare their status to the tenant before the tenancy is agreed so the tenant knows they’re getting less protection? That would be handy so a tenant can avoid such landlords.
Again, the same case. 90% of genuine landlords get a bad name due to 10% of rouges out there. Plus, the complications and tedious law processes makes it worse for genuine investors who aim to earn some reasonable return on their investment.
Most landlords do not want to get into the intricacies of law and as such they have their mortgage payments to make which raises their tolerance levels towards bad tenants.Though, the bad tenants surely get away due to loopholes and delays in the legal processes, but taking due care while letting the property at the first place to genuine tenants can help to an extent.
I am just your normal landlord who decided to rent her property as i moved in with my partner. This didn’t work out and i’ve had to give my tenant notice. This was only after the tenancy ran out and 8 wk notice was provided to her.
As she gets housing benefit paid direct and they are only interested in considering paying me after 2 months in arrears I am now struggling financially. I don’t earn a great deal and I am on my own. No rent and having to pay the mortgage is a real struggle for me and yes I agree the law needs to change, especially the housing benefit paid direct to the tenant and this not being considered as fraud when they don’t use it for the purpose of the rent, that it is the landlords responsibility to claim that money back by means of taking that tenant to court, paying out more money to get the money back that is rightfully theirs in the 1st place.
Exactly CFH, thats what I keep banging on about, taking due care and attention in setting up a letting helps enormously. I totally understand that landlords dont want to get into the intricacies too and that should be the job of an agent but so many of them seriously let their clients down in this respect.
Bad tenants do squeeze through loopholes too and usually run off owing rent. I never understand why so few landlords dont take out rent protection insurance though, its just false economy in my book
I’m a tenant suffering in the hands of a rogue landlord. I have lived in the property (cannot afford to move due to lack of deposit money) for 8 years.
During the last 8 years, despite having a disabled child, i repaired the flat, decorated, cleaned and treated mold, repaired taps, leaks, floors, etc. Have had cockroach infestations, external leaks, a kitchen falling to pieces and a boiler that was deemed condemned by British Gas.
Contacting my landlords is impossible, she just tells me to “text her or something”. I was once left without drinking water for 2months and 6 days (i actually fixed it myself and deducted the money from the rent – £14 for the tap and £0 for work as a friend did it for free!).
When i finally lost my patience, i called her about the state of disrepair. She asked me for £200 more on the rent if she carried out any work. I agreed, but asked for kitchen to be fixed, a safe external door, small bits and pieces and a new boiler. She then installed an old boiler (illegally), refused to provide me with a gas certificate (only ever verballly as i cannot get her address) and when i insisted on the certificate she served me with a verbal notice of eviction.
I am now awating my S21 and have nowhere to go with my child, despite working really hard just to pay the bills…
Suppose it woks both ways then… the time i can potentially obtain through the courts will be vital for me to save money and try and not be left homeless. It will definitely be a long and draining process…
Yes there are nightmare tenants and also nightmare landlords. You do seem to have a nightmare landlord.
Have you tried complaining to your Local Authority? You might also consider letting Shelter know: http://england.shelter.org.uk/what_you_can_do/evictroguelandlords
FSMSL
The landlord sounds like she has breached the Gas Safety Regs. If so, you may wish to call Transco to check it 0800 111 999 to check that it is safe or notify the Health & Safety Executive. Contact a local solicitor who specialises in Landlord & Tenant law. The Law Society wil be able to provide a list in your area. (use the internet for easy access). In any written demand for rent the landlord must give their address, if not then the rent may not be due. Contact your Council Environmental Health Dept who have responsibilty for enforcing certain repair obligations.
I am a council tenent but was in danger in september/oct 2009 of being homeless when my tenancy ran out at my previous address prior to the council offering me a flat.
The biggest difficulty during this period was trying to find a flat or single room that would accept HB and CT. The main problem is catch 22 for a landlord. If the tenant receives the HB they might not pay up and leave the landlord with court costs to evict them plus it takes a while.
If the tenent wishes the landlord to receive the rent directly but is claiming HB falsely then the landlord id the one liable to repay the council even if they ahd no knowledge.
It is a problem. One solution is using a credit union (explained in this rather old post here http://www.landlordlawblog.co.uk/2007/10/19/local-housing-allowances-%E2%80%93-credit-unions-to-the-rescue/).
The other is for the landlord to use the system described by Steve Perrrons in his podcast here: http://www.landlordlawblog.co.uk/2011/03/29/landlord-law-podcast-with-steve-perrins/