For many years when I practised as a solicitor, I did eviction work (until I closed down my law firm in 2013 to concentrate on my online service).
In all that time I cannot remember any occasions when my landlord was bringing proceedings for malicious reasons.
Most section 21 evictions were down to rent arrears, but in quite a few cases, maybe about a third, they were in fact brought to assist the tenant.
When section 21 claims help tenants
It often happens that a tenant will find that they are no longer able to afford to live in a property.
- Maybe they have lost their job.
- Maybe a couple have separated leaving the wife in the property with the children.
- Maybe the tenant is suffering from an illness which has got worse and now prevents them from working.
For whatever reason people find that the property is no longer affordable. But some tenants in some circumstances – for example those who have young children, will, if they are ‘threatened with eviction’, have the right to seek rehousing from their Local Authority.
However, this right is only available if:
- They are threatened with homelessness
- They come within the ‘priority need’ category (one of which is families with children) AND
- If they have not made themselves voluntarily homeless
What this all too often means is:
- The Local Authority will not do anything until a possession order has been made (and often not unless a bailiffs appointment is imminent), and
- They will seek to avoid their obligations if they can show that the tenant contributed to their homeless state, for example, by moving out before being evicted by the bailiffs
So it is not unknown for the eviction claim to actually be brought at the tenants’ request so they can be re-housed!
Are tenants responsible for their own eviction?
When doing this, you also need to take into account the other ploys that can be brought by the Local Authority to avoid having to rehouse the tenant – bearing in mind that most Local Authorities have a shortage of available properties and a very long waiting list.
So if they see that the tenant is being evicted on the basis of rent arrears, for example via the section 8 route – they may refuse to rehouse them. The reason being that the tenants are the cause of the eviction themselves due to their failure to pay rent.
Now, this may not actually be the case, and it may be that if the decision is challenged it will not stand. But most tenants don’t want to have to go through this and cannot afford (or indeed find) any lawyers able to help with the process.
So it is much easier and saves problems all round if section 21 is used – as it is a ‘no-fault’ ground. A real-life example of this can be seen in this post which describes a case I dealt with a few years ago.
New legislation has been brought in to stop the Council’s taking this approach but can tenants (and landlords) trust them to follow it? Ben will no doubt be able to inform us here.
The point of this post
But the point of this post is that in order to avoid Councils refusing to rehouse tenants by claiming that they are the cause of their own homelessness due to their failure to pay rent – tenants often request that their landlords use the section 21 ‘no fault’ procedure for eviction rather than the section 8 serious rent arrears ground.
If the ‘no-fault’ ground is no longer available – this may make it more difficult for tenants to be rehoused when they have fallen into arrears in circumstances where they genuinely cannot afford to pay their rent.
This needs to be taken into account when any new regime is being planned and legislation is being drafted up.