There is a new report out from Shelter with proposals regarding the problem of ‘retaliatory eviction’.
Retaliatory eviction is where landlords ‘retaliate’ against tenants who make complaints, for example regarding the poor condition of their property, by evicting them.
This does undoubtedly happen – which is of course unacceptable. It is a problem that has been around for a long time.
Two important questions however are:
- how prevalent is the problem in reality, and
- what is the best way of dealing with it?
How prevalent is the problem?
This is a difficult question. How can one accurately assess the number of people who don’t complain?
Shelter make the point in their report (which I have not read in detail) that 61% of renters have experienced some sort of serious disrepair issue with their property in the past 12 months.
However the figures produced by Shelter are challenged by landlords organisations, for example see this thread on the Property 118 site.
The truth probably lies somewhere between the two, but until we have a proper register of rented properties we are all guessing to a certain extent.
What is the best way of dealing with the problem?
Inevitably the tenants organisations want restrictions on the use of s21 by landlords where tenants complain about the condition of their property.
Shelter’s recommendations, which are set out on p15 of their report, are
Renters who report poor conditions to their landlord and are subsequently served with a Section 21 Notice, should have the right to appeal the eviction notice.
An Improvement Notice or Emergency Remedial Action served by a local authority should automatically prohibit a Section 21 Notice,
and
A Hazard Awareness Notice served by the local authority should also automatically prohibit a Section 21 Notice from being served.
Shelter say that these proposals would also help landlords, as it would encourage tenants to report problems so landlords can deal with them quicker.
They also propose an exception where landlords want to sell:
We also recommend that landlords who wish to sell their property would still be able to issue a Section 21 Notice, provided they could produce documents clearly evidencing a binding exchange of contracts to ensure that the proposed sale is genuine.
These proposals may well be effective but at what cost? Would they discourage landlords from renting? We need a strong private rental sector.
In particular the first proposal could allow ‘devious tenants’ to make false complaints to landlords specifically to make it more difficult for landlords to evict them.
And if the problem is as serious as Shelter allege, why should landlords seeking to sell their property be let off? They may be selling to another company owned by the landlord.
My personal view is that we should introduce a mandatory licensing system, as described in my free ebook >> here along with mandatory accreditation for landlords and letting agents. Non accredited landlords would have to let their properties via an accredited agent.
This would force those involved in managing property to be properly qualified and regulated. THEN prohibitions on the use of section 21 could be introduced – as I discuss >> here.
The reason why I think registration and accreditation are the way to go is because the provision of housing – ie people’s homes – is an important social service. It should not be left to amateurs with no training or understanding of the issues and legislation involved.
You can read Shelters report >> here.
Retaliatory eviction has been a defence to possession proceedings in many US States since 1968, as long as the reason for the eviction is related to the tenancy, so you can use it to defend if you are being evicted for complaining about repairs but not if you get caught shoplifting and the landlord doesnt like it.
There doesnt seem to be a problem with it there and I dont see any major differences in legal precepts that might prevent it being brought in here.
The RLA got out of their pram this week over what they call Shelter scaremongering, pointing out that 200,000 people amounts to only 2% of all renters. A curious argument as 2% is still 200,000 people, thats enough people to fill Wembley 3 times over, do we not bother with the problems of a paltry 200,000 people?
How many of the 2% were in arrears?
It is always possible that those in arrears are withholding rent because of the appalling condition of the property. Statistics can be misleading.
It is also possible they were trashing the property and making their neighbours lives hell.
“Statistics can be misleading.”
Indeed they can.
Undoubtedly. Maybe they cancel each other out. Who knows? Thats why we need proper records.
I think any s21 disrepair defence should only be available for repairs that were provably reported to the landlord prior to the s21 being served – that may provide a bit of protection to landlords from spurious disrepair claims – “retaliatory disrepair”! I know a landlord who issued proceedings and the tenant deliberately damaged electrical fittings and went to the local authority crying disrepair and electrical risks – luckily the landlord had check-in photos that proved the property was provided in safe condition, but who photographs every fitting?
There’s also the issue of correlation vs causation – did a refusal to repair cause the eviction, or did one just follow the other and are unrelated? If a tenant reports a repair but the landlord decides to do it as part of a later, larger refurbishment expecting the tenant to leave (perhaps due to arrears) then it may be unreasonable for that disrepair to be used to delay eviction. It’s clear to me there are a lot of scenarios that need considerable thought as to the side effects of these types of proposals.
This idea of limiting s21 use unless the landlord can “prove” they are selling is absurd. I understand the motivation, but how on earth can a landlord exchange contracts when the tenant still lives in the property and has yet to be evicted? Chicken and egg. OK they can sell to another landlord, but that severely restricts their sale market, and likely the achievable price and lengthen the sale process significantly. No owner-occupier buyer in their right mind will exchange contracts when there’s a tenancy still running.
I sometimes wonder if Shelter actually talk to housing lawyers or landlords before they come up with their crazy impractical proposals. They seem to continually miss that good landlords want the bad ones sorted out just as much as good tenants do! Work WITH the good landlords please.
In answer to Ollie, yes Shelter does talk to landlord organisations, professional associations, local authorities and lawyers.
Following the Shelter report “A Better Deal” in the summer of 2013, the Residential Landlords Association produced a report in response (publicised by Landlord Law on this site). Subsequent to that, Shelter invited the main landlord associations, tenant groups, local authorities and other interested parties to a series of seminars, independently chaired by British Gas, to discuss the sector in the light of the two reports. A relatively open agenda was provided at which it was expected that the parties could constructively plan a way forward.
Shelter has therefore been quite proactive in attempting to bring all sides together. It remains to be seen if that will be fruitful. The government consultation paper on evictions closes for responses on 21 March
HB prefers to work on the presumption that most (if not all, probably) S21s are served are for misbehaving tenants. Ah, bless.
I wholeheartedly agree with your idea that there should be an accreditation system for landlords and (especially) lettings agents, but I am interested to know what this might look like- do you propose an independent body to manage the accreditation? And how would it work? It strikes me as a terrific notion, but if all it does is add an extra, unnecessary layer of turgid bureaucracy to an already red tape laden industry it may prove extremely unpopular, I feel.
At present most landlord will not use any other type of eviction notice, as the legal system is SEEN as being unpredictable with tenants being believed regardless of how week their case is. Making S21 the same will lead to more properties being left empty when their owners can’t sell them in the short term. It may also lead to landlord being even less willing to take a risk with tenants that are on benefits.
What if:
A) there was a cost to issuing a S21 notice, with landlord having to register the notice.
B) A tenant could leave at any point after the S21 notice is issued with giving only 24hr notice, with any “unused” rent repaid.
C) The property having to be inspected and approved to be of a fit standard before it can be re-let, if an S21 notice has been issued.
Obviously not RG but as Shelter are considerably funded by the taxpayer, I would prefer they made inbiased factual reports.