Ben Reeve Lewis reports
The 1st anniversary of the introduction of the Deregulation Acct 2015 has just passed and I thought it would be a good time to report back on the impact of it as seen from the frontline.
On the 11th of November, I am speaking at the housing advice conference of Zacchaeus 2000, a charity with Jan Luba as its patron. One of my topics is this very theme, so I have been researching around and looking at my own files and I thought I would share the message.
To recap briefly the Dereg Act ushered in several key requirements that weren’t there before, that have a big impact on possession proceedings for landlords.
The Deregulation Act Requirements for Section 21
As you will all know the most common route to possession is through the service of a notice under section 21 of the Housing Act 1988. Section 21 can be invalidated by not having a licence where needed, if deposit protection rules have not been complied with, if the landlord applies for possession before the 2 months is up or if the notice period is less than 2 months (although in some circumstances it may need to be longer).
The Dereg Act added to this mix (for tenancies which started or were renewed on or after 1 October 2015):
- Failure to serve a gas safe certificate.
- Failure to provide an EPC where applicable
- Failure to serve the ‘How to rent’ booklet.
- Prevention of retaliatory eviction
The notice also cannot be served during the first 4 months of the original tenancy and only last for 6 months until it has to be served again.
In addition, for the first time there is a specific form (6A) that has to be used which contains information on all of the above, so the tenant will know what their rights are.
Given the 4 month moratorium everyone knew from the start that the earliest we would start to see possession claims brought under the new rules would be February 2016, which is 8 months back now.
‘Safer Renting’ – a new initiative
In April 2016 I started helping build a project called ‘Safer Renting’, a new funded initiative sitting under Cambridge House Law Centre which provides housing advice and advocacy services for tenants working in partnership with different local authorities in London.
This involves going out with the council enforcement teams to find tenants with problem landlords and taking direct referrals from them where they fall across tenants in difficulty when we aren’t around.
We aren’t legal aid dependant and we take on cases even if the tenant doesn’t have recourse to public funds.
Essentially what we are doing is plugging back in all the services that have been largely cut because of budgetary constraints but from outside of the council’s themselves, so we are both independent and embedded at the same time.
We are currently working with 3 London authorities with another about to sign up and two more in the pipeline, so I am in the unusual position of seeing the problems being encountered by tenants in several boroughs at the same time.
Not a single valid notice …
I have been involved in more than 50 cases so far this year and I can report that I have not seen a single, valid section 21 notice to date.
I’m not saying “9 out of 10” and I’m not saying “Most of them”, I’m saying “NOT A SINGLE ONE”.
I have not been presented with a Form 6A yet either, even though I’ve seen countless tenants who moved in under the auspices of the Dereg Act.
More worryingly is that I have been involved in several court cases to get an already granted possession order set aside because the s21 was invalid, which indicates that the validity of s21s is getting missed in the rubber stamping process.
How even the Judges get it wrong – and refuse to believe it
Earlier in the year I was defending a possession action at the last minute, so didn’t have time to construct a skeleton argument. The basis of the defence was that the property in question was an unlicensed HMO which meant that the S21 was invalid for that reason. Not even a Dereg Act defence but an issue in force for several years now.
The judge flatly refused to believe that there was a law prohibiting service of an s21 where there is no licence in place.
That is, I have to say, an isolated incident, most DJs aren’t so willfully ignorant when presented with a valid challenge, even if possession has already been granted due to an oversight. You just have to get in front of them and make the case, which is what we do.
It’s becoming a bit like shooting fish in a barrel and reminds me of the early days of the Housing Act 1988 when you needed a section 20 notice to create an AST. For many years, landlords simply didn’t know about them, so defending possession actions was easy-peasy, even dully repetitive.
How landlords lose out
So what is going on? Why are so many landlords not complying with the rules of service under the Dereg Act?
Are they as wilfully ignorant as my judge that day or is it, as with the old s20 notices, that landlords still just don’t know?
The websites of the NLA, the RLA, Landlord Law Blog have been running features on the Act for well over a year, so there is no excuse for not knowing.
All that is happening is that landlords are leaving themselves open to soundly defended possession claims and even having their possession orders set aside when challenged.
A huge number of people facing eviction go to the council for advice and if the council don’t have a housing advice team, or Safer Renting plugged in, then they do have a homelessness prevention team who are all trained to spot defective notices and do what their job says on the tin “prevent homelessness”.
The ball is in your court.
I’d be interested to know if you have any cases in the future where the ‘wrong’ version of the How to Rent booklet is issued. My understanding is that by the letter of the law, the booklet issued needs to be the version that’s in effect at the start of the most recent tenancy or tenancy renewal. Given it’s been updated a few times and without any notice, it will be interesting to see how important a point that may be, or not.
There is also some confusion about what the correct book to serve is if you are serving late http://www.landlordlawblog.co.uk/2016/08/30/how-to-rent-booklet-laws/
We are certainly monitoring such things with Safer Renting but at the moment I can say that the wrong version would be a step up right now from none served at all, which is what I’ve seen so far
My AST has a section which requires the tenant to sign, individually, that the following documents have been received. Note that I do not rent HMO’s and have no gas in any of my properties.
EPC
How to rent booklet
Rent book
Witnessed test of smoke alarm
Is there anything I have missed?
I do not take deposits, a fact which is clearly stated on the tenancy agreement, but that has not stopped several judges deciding that rent top up payments are deposits! This despite evidence that the tenant was severely in arrears.
In addition I ask the tenant to sign every page of every document and because of a colleague’s recent case in which a tenant said his signature had been forged (believed by the judge) I am now asking for a thumbprint on every page. OTT – yes – but I have to protect my position.
I generate S21 documentation electronically as the safest way of ensuring everything is correct (Home brewed software), using the content of form 6A having been advised that it was the content and not the actual layout of the form which was important (My form looks superficially like the government one but has a clean typeface). Was the legal advice I received correct?
Any tenants that are reading this – never assume that a s21 notice is valid and always get it checked by Shelter or your local law centre if you have one. Here is a helpful flowchart too http://nhas.org.uk/docs/S21_flowchart.pdf and my Twitter feed gives other refs.
An invalid Section 21 Notice means that you can stay on in the property of course. The incredulous (but incompetent) landlord typically threatens court action and bailiffs while remaining oblivious to their own error. You can tell them of that error (you are doing them a favour) but timing is up to you. The landlord must reserve the Section 21 Notice with the amended expiry date on it and the 2 months notice starts ticking again. I say this because it can buy tenants some much needed (extra) time to find their next home.
This sort of comment is encouraging bad tenant behaviour. Do you not realise that the tenant will probably not be paying rent? Instead why not encourage the tenant to rectify any problems, then the landlord who wants to keep the property occupied, will not need to evict.
However, an invalid S21 is still a request by the landlord for his property back.
A tenant who does not leave will receive poor references from that landlord in the future.
To take your argument to its extreme, if you issued me a (clearly invalid) section 21 tomorrow wanting to property back the next day, that would clearly be unreasonable. But from your perspective, I haven’t given your property back and you’d give a bad reference despite being totally unreasonable.
You can lord it over people as much as you like, but what you are discussing here is denying people their legal rights.
How would you react if your bank decided it wanted the money back for your mortgage but didn’t follow the correct procedure?
“You can tell them of that error (you are doing them a favour) but timing is up to you.”
This made me think: what if I (in the role of a tenant) found out my landlord’s error, making their notice invalid, but just remain silent about it. When the landlord tries to get a possession order, I may simply point out the error which invalidated the notice forcing them to go back to square one.
That just gave me two extra months of not being evicted. I know this is not exactly model tenant behaviour, but if things go up to that point, is there any legal duty for me to point out the invalid notice as soon as know about it. Or, can I just pretend to be ignorant and allow the landlord to shoot themselves in the foot?
Speaking as an independent legal advisor (who sometimes advises tenants too) I would say that there is no legal obligation on you whatsoever to tell the landlord his notice is wrong.
It is up to the landlord to get it right. Why should you be his legal adviser?
Thanks Ben
I am astounded by all 50 being invalid (dont doubt your word to add)
in respect of the 50, can you tell me if any of those were agents completing on behalf of a landlord?
Me again
Any chance of a simple breakdown on the reasons why the notices were invalid?
Pete that is an interesting point. We are only a few months in and still working on our recording processes but it would certainly help for us to monitor reasons for invalid notices.
There is rarely a single reason. Most of the s21s we are seeing are invalid for all of the breaches. No licence, no deposit protection no how to rent, no gas safe, no EPC, and no form 6A.The only thing I haven’t seen is retaliatory eviction but then I never expected to, as the criteria for it is in Walt Disney World and hardy ever likely to happen
The most common are the licensing and deposit ones because not all of the 50 are under the dereg Act and go back a few years.
Agents are also falling foul but with them the most common issue is the incessant and deliberate blurring of lines between who the agent and landlord are. The old smoke screen trick where everyone points the finger at everyone else.
You get the owner, who says the agent is running it but the owner is the MD of the agency and then a fake, non existent agent supposedly charged with the job of day to day management rather than sign ups, with all the staff giving different names to different tenants and when you do pin one down they tell you “Oh he doesn’t work here anymore”
Another day in rogue landlord/agent land
It’s not shocking, it’s exactly why all these traps were set up by the Deregulation Act (ironic name).
@ David Price.
Why is it heresy to advise tenants of their rights or that the landlord might have got it wrong?
The landlord makes an income out of renting out properties. The small landlord just turns over a pension fund while the portfolio landlord runs things as a business and but either way there are rules to be followed, however inconvenient.
I cant for the life of me understand your view that simply educating tenants of their legal rights encourages bad behaviour.