For the past couple of months I have been running this series on the various defences that might be available to tenants, to a landlords claim for possession using the special accelerated procedure.
After having come up with eleven posts on the subject I feel I have come to the end of the line.
However, but if you know of any potential defences I have overlooked, please do leave a comment.
So it remains for this final post to summarise the information and look to the future.
A summary of the defences
We started with the defence that the tenancy is not an AST and also looked at issues relating to the timing of the issue of proceedings, and proof of service of the notice. However the most common problems occur with the drafting notice, in particular regarding the expiry date.
Good news for landlords is that this problem can easily be overcome by using a saving clause with your notice. In the past some Judges were unhappy about these, but recent cases have shown that the Court of Appeal consider them valid. So there is no reason not to use them.
The main problem I suppose is that many of the section 21 notice available, particularly those which can be downloaded for free, do not contain a saving clause, making people who use these notices more vulnerable to claims being dismissed.
The other very common reason for claims being rejected is that the claim form has been signed by someone other than the landlord or his solicitor. Usually this is the letting agent. I discuss this, and why it is unacceptable, in post #9.
The two final defences I looked at were those which will arise if the landlord is in breach of certain specific legal obligations. At present these relate to obtaining a HMO license if the property requires it, and protecting the deposit and serving the prescribed information notice, where a deposit has been taken.
Looking to the future
These last two defences point the way. If further regulations are developed for private landlords it is highly likely that they will be enforced, not by making a failure to comply into a criminal offence, but making it an obstacle to recovery of possession under section 21.
After all, as several reports have shown, criminal penalties are frequently not being enforced. This is largely because of
- The amount of time it takes to prepare a criminal prosecution
- The lack of man power at Local Authorities (who bring most housing related prosecutions) available to do this work, and
- The low level penalties handed out by courts, even if a prosecution is successful, making many people consider that they are not worth the effort
The main problems with the ‘civil remedies’ option for dealing with failure to comply with regulations though, are with difficulties in enforcing them. As seen with the tenancy deposit penalties in recent years – not the section 21 element but the right of the tenant to claim a penalty payment for non compliance.
Because a penalty which prevents a landlord from recovering possession under section 21 is only going to ‘bite’ if the landlord actually wants to recover possession. Most landlords don’t. So, as with the tenancy deposit regulations, when creating penalties for non compliance, a prohibition against using section 21 when in default is not going to be enough.
I have noticed that this government though seems to favour returning to the criminal penalty option, for example with its plans for dealing with squatters and council tenancy subletting. Although it is not certain that the enforcement bodies (the police and local authorities) are going to be fully funded to allow them to use these new powers.
No doubt though if extra regulations are enacted for the private rented sector, for example relating to property standards, landlord registration and accreditation, rules prohibiting the use of section 21 on default are likely to be a part of the mix.