Having been sent links to the Tenancies (Reform) Bill, I thought I ought to take a quick look at it.
The draft bill is here and the notes are here.
By way of introduction, this bill has been drafted to try to prevent landlords from evicting tenants who complain about the poor condition of their properties – the practice known as retaliatory eviction.
Which is quite right and proper – landlords should NOT be able to do this. However, good intentions do not always make for good legislation. Lets see how this one shapes up.
General impressions
I have to say that the first time I read the bill, it was difficult to stop my eyes glazing over and I kept thinking of other things I really ought to have been doing elsewhere.
I then read the notes, which clarified things a bit, and went back and read the bill again. It made a bit more sense then.
Here are a few bits and bobs which came to mind.
Its complex with a lot of inter clause references
To me that says that there is going to be a lot of dispute over the detail (consider the tenancy deposit legislation). Which will inevitably make section 21 claims more problematic.
It has to be said that one of the main drivers of the private rented sector (in which an increasing proportion of the population is housed) is the ability for landlords to recover possession of their properties easily after the end of the fixed term (unlike under the preceding Rent Act 1977).
This bill, as drafted, could seriously jeopardise this right.
Some landlords may already be planning on selling their portfolio.
Its more work for the ‘relevant housing authority’
Basically the idea behind the act (as I understand it) is that if a tenant complains to a Local Authority and they serve a ‘relevant notice’ on the landlord, the landlord then can’t use section 21 for six months. (Unless one of the exceptions apply, see below).
However Local Authorities are underfunded, overworked and understaffed. Which means that they will not have spare capacity to go around doing inspections for tenants who are unhappy with the condition of their rented property.
This is probably why section 1(4) provides for situations where, basically, a complaint has been made and the Local Authority has not done the inspection. Or they have done the inspection but have not made their minds up yet what they are going to do about it. Or they have not got around to serving the notice yet.
But this is going to be a bit hard on the landlord – for example if they are trying to evict a nightmare tenant in an HMO, who is making other tenants lives a misery, but are unable to do so because the tenant has made a spurious complaint to the Local Authority which they have not had time to deal with yet.
Or if the tenant is deliberately prolonging things by refusing the landlord access to carry out repairs.
There needs to be a way for good landlords to deal with false claims
Sub section (5) sets out various circumstances where the tenant won’t have a defence, which include the notice being served in error, or the decision being revoked etc.
However I would like to see something to help the genuine landlord whose property is either not in disrepair or who wants to do something about it but the tenant won’t let him in to do it.
Could we not say, for example, that the tenant will be unable to defend if the landlord submits a surveyor’s report saying that the property is without problem?
Or if the tenants have refused access to the landlord’s surveyor and/or workmen to inspect and/or carry out works on more than three consecutive occasions? Or something like that.
There needs to be some mechanism to protect landlords from tenants making things up, to prevent s21 evictions. I don’t think Local Authorities are currently up to the job.
There are some much needed amendments to s21 itself
I was pleased to see that s21(4) is to be amended to do away with the dreaded requirement for the notice to give a date which is the last day of a period of the tenancy. Landlords should be happy with that.
Also the act provides for the Secretary of State to be able to prescribe a form (hooray!), and the time for bringing proceedings after service of a s21 notice is to be capped at 6 months.
Rather than as now, landlords being able to use it years after it was served and after everyone else has forgotten about it.
The effective initial ‘section 21 free period’ is effectively being extended
The draft seems to be saying in s4 that you cannot give a s21 notice during the first four months of a tenancy. Which as the notice is a two month one, means that the earliest date you could start your eviction proceedings would be at the end of six months.
Unlike now when you can grant a one month tenancy, serve a section 21 notice immediately and then issue proceedings during the third month. That way the landlord could get an order for possession to take effect at or shortly after the end of the six months ‘moratorium’ period – during which the Judge cannot make an order.
As it takes between two and six months normally to get an order for possession under s21, this clause is effectively extending the period of time a tenant will be able to stay in a property before he can be evicted under section 21. Landlords take note.
It will be particularly hard, for example, on landlords who agree with their tenant that they will only have a short fixed term (which is allowable) but then find that the tenant changes his mind and decides to stay on.
This is not the end so far as limits on section 21 are concerned …
It also looks as if there are powers to impose other ‘prescribed requirements’ (s5) relating to
- the condition of the property,
- health and safety and
- energy performance.
Which is going to limit further landlords rights to use section 21.
Conclusion
As I said at the start, I am all for preventing landlords from evicting tenants just because they don’t want to carry out essential repairs in their properties. There are some horrific landlords around.
However I am generally not happy about legislation ‘patching’ problems. Unless done carefully, this can create more problems than it solves.
One of the main things which worries me about this bill though, is its reliance on Local Authorities doing inspections and serving notices. At the moment, in some authorities, two or even one person is doing the work formerly done by eight or ten, as a result of budget cuts. They do not have the capacity for extra work.
I think this aspect needs to be seriously reconsidered.
There is also the problem, which has been pointed out elsewhere (e.g. by the RLA) that there is enormous potential here for tenants to play the system by making malicious reports or even damaging the property themselves, in order to defeat the landlords section 21 eviction claim.
Government is rather relying on the private rented sector to provide accommodation for all the people who can’t afford or who don’t want to be an owner occupier. They need to be careful not to destabilise the industry.
What do you think?
At the early discussions of the propsed bill it was the intention of the drafters to ensure that good landlords who manage their proprties reasonably were not subject to tenants being obstinate.
It is for that reason that Clause 2 (1) (2) &( 3) are included.
If a landlord has an up to date property log including incoming inventory and perhaps details of maintenance and repairs carried out, issued instructions of what to do in the event of an accident or disrepair, that will enable a landlord to respond to a contact from an EHO that the property is normally maintained and that the repair will be dealt with.
The Enforcement Concordat issued by DCLG around 2009 will remain in force and that advises that an LA should not move straight from a complaint to enforcement by notice.It advises that a landlord should be advised of the repair and invited to attend to it voluntarily.
A tenant will not be able to contact an LA and expect a statutory notice to be issued as a result, except in the most serious of cases.
The reason for the restriction on the issue of a S21 until four months is partly to cover the situation where perhaps a disrepair has been cosmetically disguised; typically this often includes a coat of paint or a sheet of hardboard over rotten floorboards such that the repair does not become immediately apparent. (It will also cure the problem of S21 issued before deposit protection -although I have not caught up on the current state of play)
As with much legislation resources are often a problem eg child protection reform, but it should not stop a law being amended or implemented.
In the long run, it may create less work for EHOs as they are often required to inspect them same property with the same or similar issues, year on year. Currently, when a tenancy is ended, and a property is vacant, a repair complaint goes to the bottom of the pile and the issue may come back, 6, 12 or 18 months later when a further inspection would be necessary. The moratorium will allow for a follow through to ensure a repair is actually done.
There are many other points to comment on but I would expect that guidance would accompany the Act.
My tablet will not let me do amendments.
Final comment. It would help if the various landlord organisations would engage in meaningful discussions to try and ensure the proposals work for their members; unfortunately the RLA has come up with a convuluted argument that a current defence to a S21 claim, can be to use Consumer Contracts regs at court interlinked with the issue of the S21 being a criminal act under the Protection from Eviction Act. It is on their website or on Nearly Legal. RLA analysis is not helpful to anyone.
Thanks Colin. The Nearly Legal post on the bill, which is written by David Smith is here http://nearlylegal.co.uk/blog/2014/11/stop-retaliating/
Just a thought.
If a LL would rather use s21 on a tenant than do a repair it is logical to assume the LL won’t repair the property after evicting the tenant and will just re-let it, possibly with a cosmetic cover over the problem.
Would a register of s21 evictions help. If I look at a property and see that the last tenant was s21’d I might ask why, if there was a long string of s21’s against a property then that should raise alarm bells, either the LL is very unlucky or they tens to be a bit “eviction happy”.
A simple requirement (as a package to simplify s21 as a whole) that to be valid a s21 notice (now in a standard form) is sent to the tenant and to some official body (possibly the local housing officer) who maintains a list of s21’s on a national database (a nice simple one, like the ones used for planning applications).
In fact the database would be a useful way of tracking all housing officer interactions with a given property, so the same database would also record any housing or environmental health investigations (both the accusation and the final report either backing the tenant or absolving the landlord), any orders made etc. This would then give any potential tenant a history of the place they may move into.
I think this bill is going about it the wrong way.
I would much rather there be a requirement to register a S21 notice (for a charge, say £100!) when you issue it, and then it to be illegal to re-let the property until it has been inspected (at the landlords cost). That way a tenant has nothing to gain by lying, but a landlord cannot use a S21 to replace a complaining tenant with one that will put up with disrepair.
It would be easy for there to be a public database of properties requiring inspection, so letting tenants and agents (+ RightMove) to check, along with a large fine and an order banning someone from being a landlord for life for the 2nd offence.
Also the bill at it stands will make it impossible to buy a property that may be in a poor state with a tenant in place due to the risk of not being able to remove the tenant to do a complete refit. Lenders will not like this…
A Rogue Tenant’s charter that will cause more harm than good.
There are many points to comment on but I would expect this to get ripped to pieces at the Bill committee stage.
-If anyone on it has more than a rudimentary knowledge of the PRS.
A couple of points from the enforcement side.
Whilst I understand the concerns of landlords and can imagine savvy, nightmare tenants using it as a stick to beat their landlord it must be understood how widespread and pervasive retaliatory eviction is.
For years now both myself as a TRO and our environmental health team with whom I work very closely warn every complainant that retaliatory eviction is a possibility if we contact the landlord. It is not uncommon for tenants to then withdraw their complaint for fear of it.
It is equally common for the kinds of landlords we deal with to begin eviction proceedings and harassment once we get in contact.
Also, as Colin points out EHOs don’t just serve notices willy nilly and can tell the difference between tenant damage and poor property conditions. Any notices they do serve are tightly prescribed by various bits of legislation and only where the property is in extremely poor state are emergency notices served.
In the vast majority of cases the landlord is given time to remedy the problems and are occasionally offered grants depending on the type of works.
In fact I often get very frustrated at our EHO’s reluctance to take a harder line on these issues but Tessa is right when she talks of cuts in teams. I work in a large inner London borough, similar to Newham. Where Newham have around 80 EHO enforcement officers we have 3, and that is pretty much par for the course everywhere but Newham, so we don’t have the facilities to start chucking notices around everywhere.
This bill failed today.
Rightly so IMHO.
Though I would like to see the 7,000* landlords doing this hammered for it, it shouldn’t be to the harm of everyone else (tenants and landlords).
Hopefully some good will come of it and a lot more funding will be allocated to more EHO’s to go after these evil fornicators (note lack of swearing).
*My guess is as good as that used as the evidence for this bill.
The Bill did not fail on it’s merits. It failed to progress on the basis that two MPs, Philip Davies and Christopher Chope each spoke for around 1 hour with friendly interuptions of each other (they were sitting next to each other) that then allowed ezch to diverge from their speech to respond to the point before returning to their own speech.
Their interuptions often involved one asking the other questions that they could not answer that enabled them to give their opinion and also say why they could not provide a definitive opinion or suggest that the government might answer.
The Speaker warned Davies that he must not in his speech repeat the same point several different ways. He also read verbatim S21 in its original firm from 1988 and then each amendment since; then went on to
S11 LTA, followed by various clauses of HA 2004 and then said that was what the Bill is about. That raised an objection from another MP who said we know what the Bill is about but what is your speech about.
When Davies made a caustic comment about the Speaker he was told to sit down and that his speech was over.
As it was getting near the deadline for the end of debate the vote was called but those opposing the Bill refused to go through the voting Lobby that meant the necessary quorum for a vote on closure could not proceed.
Because of the rules as Chope was speaking at the deadline, and a quorate vote had not been held the Bill failed automatically – not because a vote had been taken against the merits. The opposers were seemingly afraid they would lose.
The two MPs were even subject to a criticism by another Tory MP who
said her constituents would be hurt by their behaviour. It was an appaling spectacle.
I think its a shame. I did not agree with the way the bill was drafted, but retaliatory eviction is a terrible thing and should not be allowed.
I am sure the bill could have been amended to a form which would protect good landlords (which was the main thing I was worried about).
I understand that many MPs are landlords ….
Then that is a scandalous disgrace Colin. Defeated by political shenanigans that needs to be more widely known.
@HBW It can be done. A targetted approach is what we do in my council. My job title is now “Housing law and intelligence officer” in the Rogue Landlord Enforcement Team. There are only me, the coordinator and 3 EHOs but we plug in to planning enforcement, building control, community safety, trading standards, food safety, police, HMRC and a range of others.
By pooling information between us and other local authorities we pro-actively find these people and go after them and their assets.
In the way the CLG measures the success of teams like ours we compare very favourably to Newham with their 80 enforcement officers.
Ben, it sounds like you now work for MI5.
Good work. Unbelievably, I think you might also be the first person in the public sector to actually implement the holy grail of ‘joined up thinking’!
I often say in jest (although it is actually true)when explaining to people how our team works that it is a pretty poor indictment of councils where a radical idea that is effective is actually no more radical than just getting different teams within the council sharing information and working together.
In all seriousness though it is a big headache because of all the different pieces of legislation the different enforcement officers have to work with. They dont all fit together.
We recently had 25 people in a small house with death trap conditions. We figured the best way to deal with it would be an Article 51 closure from the Fire Brigade but this would have meant finding homes for all 25 on the same day, an impossible administrative task that would have involved the poor buggers being located anywhere we could get.
Also, as we have found, a property might be an unlicensed HMO converted without planning permission but if EHOs serve a notice it can be deemed to have legitimized the planning so enforcement there is lost.
Warrants to are another headache. Depending on which team internally or externally is getting entry warrants you have to get the timing right as some warrants last 14 days, some 28. So if there is a cock up and a team has to blow out the warrants have to be re-applied for.
Just getting your legal ducks in a row across all teams before donning the stab vests is like mounting the D-Day invasion.
Most private members bills fail.
This one failed from lack of support.
If it had been realistic it would have passed.
As the man said;
Jim Fitzpatrick (Poplar and Limehouse) (Lab): “If the Bill is as important as many of us believe, we should have had 100 colleagues here to support it.”