This is part of a series of articles for landlords on preparing for the removal of the no-fault ground for possession under section 21.
Part 3. The Property Condition
One of the big complaints made by tenants about section 21, quite rightly, is ‘retaliatory eviction’ – the fact that some landlords will use it to evict tenants who ask them to carry out repair work and comply with their legal obligations regarding the condition of the property.
So probably one of the main drivers for the government’s decision to do away with section 21 is to make it less easy for landlords to do this.
Criminal landlords are the target
I suspect that for the real criminal landlords the removal of section 21 is not going to make much, if any, difference They tend not to use legal processes anyway and operate ‘under the radar’ as discussed in Ben’s series here.
However, the change will make it less easy for landlords who operate above the radar to avoid their legal obligations. Which is no bad thing.
What are landlords’ obligations?
Landlords responsibilities as regards the condition of the property have been added to in recent years – but provided landlords take care that their properties are in decent condition then they should not have too many problems.
The main statutory obligations are as follows:
The Statutory repairing obligations under s11 of the Landlord & Tenant Act 1985.
These make landlords responsible for keeping in proper repair the structure and exterior of the property and the installations for the supply of water, gas, electricity and space and water heating.
The main problem with this is that it only applies to things which are ‘broken’. So if something is inadequate but not actually ‘in disrepair’ then these regulations do not apply.
The Fitness for Human Habitation rules
This problem was resolved by the Homes (Fitness for Human Habitation) Act 2018 which amended the 1985 act by introducing an obligation (in England) for properties to be ‘fit for human habitation’ at the start of and during tenancies. From 20 March 2020, this will apply to all English tenancies.
This new legislation should not worry most landlords whose properties are in a decent condition. Again, it is aimed more at the ‘rogue’ and criminal landlords. However, it does for the first time allow tenants to base claims on breaches of the standards set out in the Housing Health and Safety Rating System.
Utilities and other safety regulations
Landlords are also obliged to carry out safety checks and provide tenants with certificates under the gas regulations and also the forthcoming electricity regulations (when they come into force).
There are also a plethora of health and safety regulations regarding such things as plugs and sockets, gas cookers and the like. These are largely enforced by Trading Standards Offices who should be able to provide explanatory leaflets.
The Housing Health and Safety Rating System
This is used mostly by Local Authorities when inspecting properties. Failures to comply with the standards will normally result in enforcement under the criminal system.
Although as stated above the standards can also now be relied upon by tenants when bringing claims under the new fitness legislation.
Property Condition and Eviction
At the moment compliance with some of these standards (although not all) are a condition of eviction under section 21. However, compliance is also very important for claims for possession under section 8 based on rent arrears (the most popular ground).
This is because tenants can counterclaim for compensation for disrepair or unfitness of their property, and seek to offset any award made against their rent arrears – thus destroying their landlord’s ground for possession.
This is one reason why landlords worry about eviction based on rent arrears as they fear that tenants will seek to overturn their claim based on non-existent repair and fitness issues.
However, it’s not a given that tenants will succeed in this. Here are some simple steps that landlords can take to protect their position.
- Make sure that you are able to prove that the property was in good condition at the start of the tenancy, for example by having detailed third party inventories and inspection reports.
- Have a proper system for recording all tenant complaints about the property condition, arrange for it to be dealt with promptly and have records of this easily available.
- Carry out regular inspections and keep records showing the condition of the property. Complete a form during the inspection and get tenants to countersign it confirming that there are no outstanding issues.
- When tenants telephone, develop a practice of asking them if there are any outstanding issues at the property which need to be dealt with. Keep records of all telephone calls and your questions and answers by tenants.
Then if tenants appear at a hearing for possession alleging longstanding repair or fitness issues, you will be able to produce your paperwork to show that if these issues exist, they were never reported to you.
It is also a good idea to have proper representation at all hearings as a professional advocate will be better able to deal with this situation as they do it all the time.
Landlord Law members will find detailed step by step guidance on their obligations regarding the property condition in our checklists.
Any new procedures introduced regarding the eviction of tenants are likely to include measures to prevent retaliatory eviction.
However, if you have records to show that the property is in good condition and that all requests by tenants have been dealt with swiftly, they should not derail your claim.
Now is a good time to ensure that these systems are in place – then even if retrospective legislation is introduced it will not be a problem for you.