One of the big problems with the current system is that many tenants are living in sub standard properties but are unable to do anything about it. Usually this is because they are terrified of retaliatory eviction.
Enforcement of property standards under the current system is either by tenants themselves under the civil law (or sometimes by self help) or by Local Authorities (or occasionally the tenants themselves) bringing prosecutions.
However bringing a civil claim is difficult, time consuming and expensive and likely to result in retaliatory eviction – as is ‘self help’.
The prosecution route is also unsatisfactory. Local Authorities have too many hurdles to overcome –
- The time it takes to bring a case to trial,
- The criminal standard of proof (“beyond reasonable doubt”),
- Tenants being unwilling to give evidence months or years after the event,
- The lack of suitably trained staff to deal with the heavy burden of preparation, etc etc.
Even when they do succeed in getting a conviction, the sentences handed out are usually laughable and no deterrent to a millionaire criminal landlord.
I agree with Generation Rent that the onus in getting something done about sub standard property should not be left to tenants but should be dealt with by way of licensing and accreditation.
This will largely eliminate the retaliatory eviction problem.
Proving that property is decent
The main proposal made by Generation Rent is that landlords should have to prove that their property is in a fit and proper condition to rent by providing a report, based on the current Housing Health & Safety Rating System.
The report to be done either by the Council themselves or by an independent qualified third party (presumably an Environmental Health Officer or Surveyor).
The suggestion is that this will be linked to licensing so presumably the inspection will need to be provided at the time of licensing and when the license is renewed, rather than every time a property is let to new tenants.
Whatever the frequency, many landlords will not be happy with this proposal considering it yet another unnecessary financial burden on the good landlords. However I think it has a lot of merit.
Housing is important and landlords are providing a public service (not just, as some landlords seem to think, getting a ‘return on their investment’).
Substandard housing affects not only the health and wellbeing of its inhabitants (with a particularly negative effect on children), it can also have a depressing effect on a whole locality.
The system however should aim to reward the good landlords as well as punish the bad – maybe landlords whose property is above a certain level should pay a lower licensing fee?
The key, as with all proposals of this type, will be enforcement. At present there are still many landlords who are flouting the current system with impunity.
Penalties will need to be a real deterrent. Some ideas are :
- For landlords to be unable to enforce payment of rent until conditions have been complied with
- An inability for the landlord to use section 21, and for persistent cases
- The right for the property itself to be forfeit to the Local Authority
Depending on circumstances this could range from the Local Authority taking over the management of the property for a period of time to bring it up to standard, to the actual title to the property being transferred to the Local Authority (or maybe to special organisations set up for the purpose).
This last to only apply in the worst cases – however I suspect the prospect of losing the property will have more effect on criminal landlords than a fine or six months in prison.
Reforming the law
The law relating to the conditions of properties needs a comprehensive overhaul – at present it is a nightmare – overcomplex and difficult to enforce. For example we have
- The landlords statutory repairing covenants in s11 of the Landlord & Tenant Act 1985, and
- The Defective Premises Act 1972 – enforceable under the civil system by the tenants
- The Housing Health & Safety legislation in the 2004 Housing Act and
- The Environmental Health Act 1990 – both enforceable under the criminal system (mostly) by Local Authorities
- Along with various other disparate pieces of legislation for example relating to ‘nuisance’ and
- Specific hazards such as gas, asbestos, electrical appliances etc.
Its difficult enough for qualified lawyers to puzzle all this out, let alone tenants unable to afford legal advice.
Then as Generation Rent point out, standards do not apply equally to all types of accommodation. For example accommodation on boats in not classed as a tenancy, so the repairing covenants do not apply.
A comprehensive overhaul
Although many of the suggestions made by Generation Rent have merit, personally I do not think that this is an area of law which should be amended piecemeal.
This would just make things even more complex and difficult.
I think there needs to be a complete and comprehensive overhaul of the entire system to make it simpler and easier to enforce.
A lot of good proposals have been put forward by Generation Rent.
There does seem to be some acceptance now in government that the private rented sector is in need of reform. However care has to be taken that in bringing about reform the reformers are not actually making things worse.
The problem with the law as it relates to tenancies, and this is particularly true in connection with the law relating to the condition of properties, is that it is over complex and inconsistent. This is due to many different laws having been passed at different times to deal with different problems.
My view is that there needs to be a complete overhaul of the entire system, not stop gap exercises that just make the overall picture more complex.
Bring back the Law Commission
Between about 2001 and 2006 a major housing project, Renting Homes, was undertaken by the Law Commission which shamefully was never acted upon (although the Welsh Assembly are now planning on taking part of it forward).
My view is that the Law Commission should be asked to update the recommendations made in their Renting Homes Report of 2006 and to do a further report on the law relating to the condition of properties.
In fact I think they should be asked to look at ALL areas of housing, including reviewing the mess that is the legislation on tenancy deposits. This after all is the sort of thing the Law Commission was set up for in the first place.
The landlord associations and Generation Rent would have an opportunity to partake and submit their proposals during the investigation period, along with everyone else.
There should be some commitment on the part of government that their conclusions would be acted upon. Then perhaps we could have a simpler system which was easier for everyone to understand and enforce.