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?