One of the big problems faced by tenants and indeed the authorities, in dealing with sub standard properties is that of retaliatory eviction.
Tenants DO have rights regarding the condition of their property if their landlord fails to do repairs when asked:
- For minor things they can get the work done themselves (so long as they follow the proper procedure) and deduct the (reasonable) cost from their rent
- For more serious matters, they can apply to the court (if their landlord has failed to deal with the problem after being sent letters required by the court ‘pre action protocol’) for an injunction ordering the landlord to do the work and for financial compensation to be paid to them.
There is a problem with this however.
The problem with enforcing your rights
Although most landlords will behave responsibly and deal promptly with complaints about repairs, a few (or maybe more than a few) will just brand the tenants as ‘troublemakers’ and evict them.
This is not illegal. An eviction order under section 21 can often obtained by the landlord within six months. Few disrepair claims will have progressed very far in that time.
In most cases an eviction order will stop the tenant’s claim dead in its tracks. For example if legal aid has been obtained, it will normally be cancelled if the tenant is no longer living at the property.
If the tenant is funding the proceedings himself, he will probably have been evicted from the property by the time his case comes to trial, meaning that his claim would then be limited to compensation. Most tenants will have lost heart by then.
The tenants dilemma
This is not a new problem. Way back in 2007 the CAB published a report called The Tenants Dilemma highlighting this, and providing case studies.
However although few people will condone retaliatory eviction, it is difficult to find a way to deal with it satisfactorily. The solution generally suggested is to strengthen tenants rights – eg by giving a ‘retaliatory eviction’ defence to section 21 claims.
However there are fears that this could discourage landlords from investing in the PRS, worried that dishonest tenants will invent false retaliatory evictions simply to stall the eviction process and allow them to live longer at the property (often without paying rent). This would almost certainly happen.
However, there is another solution.
The landlords register solution
It could work like this. Lets say that a tenant, living in a substandard HMO, reports this to the Housing Department of his local authority. Or it could be a concerned parent of a student tenant, or even a friend of the tenant who makes the report or complaint.
Once the complaint is made, in due course the Local Authority will attend at the property and carry out a Housing Health and Safety Rating System (HHSRS) inspection (as per the Housing Act 2004).
If as a result of this inspection they find any ‘category 1’ hazards, the landlord would be given a specified period of time to get the repair work done. If he did not do this, it would go on the Register.
This could trigger automatic penalties. For example:
- Section 21 could be forbidden until after the work was certified as completed
- Tenants would be entitled to withhold rent
- For a serious non compliance, the landlord could receive an automatic fine on a pre determined scale depending on the level of disrepair
- He would also be at risk of losing his accredited landlord status, and
- In some circumstances maybe the tenants could apply to buy the property
Landlords would be entitled to appeal against this – one ground for appeal could be that the tenants themselves are responsible for the disrepair. If this is found to be the case, it could form the basis of a mandatory ground for eviction.
Removing the tenants would not remove the problem
The big advantage would be that that removing the tenant would not remove the problem (from the landlords point of view). The disrepair record would remain on the register until an inspection showed that the works had been done.
So there would be no point in retaliating by eviction.
A few other thoughts
- If tenants were able to pay their rent into the system (to protect them from a claim for non payment of rent), then this could be used to pay for the repair work – so the landlord could not claim he was out of pocket because he did not have his rent
- If the landlord is fined, this could be paid by tenants paying rent direct to the system
- These fines along with any interest on the rent paid in, could help to fund the system
- There could be standard rates of compensation paid to tenants (or which they could offset against future rent) for disrepair which could be assessed by EHOs – landlords could appeal these to the County Court or Property Tribunal
This is all just an idea and I expect people will have lots of objections to throw at it.
For example landlords may be unhappy at the power placed in the hands of Local Authority inspectors who they may feel are biased against landlords. This does seem to be a problem with some LA workers.
But a system like this WOULD help solve the retaliatory eviction problem.
What do you think?