And why they are unlikely to work
Retaliatory eviction has been a problem for many years. How big a problem nobody knows – probably less than Shelter and the other tenants associations make it out to be but more than the landlord associations claim.
In response to this, the government have now added new anti-retaliatory protection for tenants to the statute book. But is it really going to be any help?
Why retaliatory eviction works
The reason why retaliatory eviction works is because if the tenant is going to be evicted, there is not a lot of point in proceeding with their claim.
- Any legal aid obtained (if you can still get legal aid for this) will probably be stopped
- No win no fee agreements will not be available
So are these new rules going to help with this? Here are three big reasons why they won’t
1. They are dependent upon Local Authority Environmental Health Officers serving a notice
If no notice is served – the landlord can retaliate with impunity.
Are Local Authorities going to be serving notices? Well, they haven’t done so much in the past. It’s been a bit of a scandal. With funding being cut to the bone and Council staff being shed daily, the chances are that things are not going to change much any time soon.
2. Claims will normally take longer than eight months
Even if the Local Authority does serve a notice and the landlord is debarred from using section 21 – this is only for the next six months. So if the notice is served in January – he will be able to serve his notice in July and start eviction proceedings in September.
It is unlikely that (unless it is settled) a disrepair claim will have concluded by then. This is what has to happen
- The case needs to be investigated by solicitors and surveyors sent out to see if it is worth pursuing
- The pre-action protocol will need to be complied with, which involves the tenant sending out a letter of claim
- The landlord then has 20 days in which to respond after which
- Any offer made by the landlord will need to be considered and
- A joint expert will need to be instructed to prepare a report
All of that will take several months and the case has not even started yet!
Then if the claim is to go ahead it will need to be drafted and issued, the defendants will need to file their defence and all the procedural issues relating to service of documents, witness statements and the like will need to be dealt with before the case can be set down for trial.
Before all that has finished it will be July, and the landlord will be able to serve his section 21 notice.
Even if the case has finished by then – do you think the landlord will refrain from evicting his ‘troublemaker tenants’ anyway after September? No, neither do I.
3. There is no guarantee that the claim will be paid
Before starting the long and expensive business of bringing a claim, you need to be sure that your defendant will be in a position to pay it.
There is no such guarantee with private landlords. Although they will have at least one asset – the rented property – in many cases this will be mortgaged up to the hilt.
This is the reason why solicitors will almost always be willing to take a gamble on a no win no fee claim against a Local Authority or Housing Association (where you can, at least, be sure that you will get paid eventually if you win) – but not against a private landlord.
It’s one thing to gamble on whether you are going to win or not.
But with a private landlord the solicitors are taking two gambles –
- winning the claim and
- getting paid at the end of it.
Not surprisingly their answer is invariably ‘no thanks’.
So what can be done about it?
There needs to be a balance struck between the interests of the landlord and the interest of the tenant. I am not convinced that anti retaliatory eviction legislation is the answer.
One other solution could be by introducing mandatory insurance for all landlords. Like with motorists. Then there could be an arrangement with insurers that they would back claims against uninsured landlords in a similar way to the arrangements for claims against uninsured drivers.
A solution like this is the only way I can see that claims could be brought against private landlords whose properties are in poor repair.
What do you think?
The other severely limiting problem in practice is that there are only 3 types of notice that an EHO can serve which has any bearing upon this. Also despite there being 29 HHSRS category hazards these rules only apply to hazard’s one and two, so only the most severe form of property conditions will be covered..
There is a better alternative, to get behind the Karen Buck Bill and amend section 8 of the Landlord and Tenant Act 1985, lifting the 60 year old rent limit and simply makiing it illegal for a landlord to let out properties that arent fit for human habitation.
Why anyone, landlord or tenant woyulod be against this is a complete mystery to me, although there must be something in the plan as those twin idiots who talked out the retaliatory eviction bill in its first stage also did the same to the Bucxk Bill and it is widely tipped not to get much further.
The only beneficiaries from a Bill like that not getting passed would be slum landlords. The retaliatory eviction regulations will I predict be a very little used tool
I predict that Karen Buck’s Bill, although nominally timetabled for a further chance of debate later in this session, will fall by the wayside due to the antics of Philip Davis MP
I got an email from Phillip Davis last time I complained on this blog about his filibustering of the Buck Bill, defending his position and insisting that he didn’t and that it just genuinely ran out of time. The fact that that Chope was also involved again didn’t do anything to affect my view.
I don’t understand why anyone would be against a rule that made it illegal to rent out property that isn’t fit for human habitation, a rule that is already in place but simply hamstrung by only being tied to a rent level that was set in the 1950s and left unaddressed since then
To clarify HHSRS, There are only two levels of Hazard : Category 1 and Category 2.
Category 1 Hazards are the high risk ones and place a duty on a Local to take action. Anything from a polite letter pointing out repairs are required (Hazard Awareness Notice), to prohibiting the use of the property immediately.
a Category 2 hazard is everything else, so a property that was perfect would still have 29 Category 2 Hazards present and the Local Authority MAY take action to deal with them.
Of course Hazard Awareness Notices and Prohibition Orders and Emergency Prohibition Orders don’t count.
For the most common type of action, the Improvement Notice, it is likely that for some repairs a timescale of 5 or 6 months may be given which means the repairs are completed just as the S21 is served.
A better timescale would have been 6 months starting from when the Improvement Notice or Emergency Remedial Action Notice was complied with/completed. So the tenant had at least 8 months of benefit from the repairs.
That is a somewhat pessimistic viewpoint, but accurate in respect of the LAs issuing notices. That is partly as a result of the watering down of the original proposals. Some LAs have (quite unofficial) policies of not issuing formal notices in any circumstances. Whilst this is partly in recognition of the Enforcement Concordat some consider it easier to do and it also avoids notice appeals.
What is the purpose of the retaliatory eviction regulations? I suggest that it has two purposes,
firstly it will (hopefully) enable the tenant to remain long term and
secondly will mean that the standard of the property will be improved, regardless of who rents it.
Too often whilst involved in the field I saw tenants of the same property reporting the same default year on year. Previous tenants having vacated and perhaps the landlord had disguised the fault, or often a promise that they were in the process of repair but were waiting for a builder to fix a date.
The purpose is not necessarily for the purpose of compensation, because as Tessa says the tenancy can be ended anyway due to the lack of tenure.
I primarily dealt with enforcement in relation to harassment & illegal eviction. Many tenants wanted to be reinstated and have a place to live and were not interested in a court case and to relive the situation 6-9 months down the line. Obvious exceptions were where personal goods had been lost or there was violence and the person was frightened to return. I expect the same applies in a situation when a repair need is reported.
If anything the new regulations will act as a disincentive to a landlord providing that they do not think that the LA will not take any action in any event.
Can someone authoritative please confirm EXACTLY which types of notice are effective in blocking the issue of a s21 or voiding one already issued? Far as I am aware it is only an improvement notice and nothing to do with prohibition or hazard awareness or anything else.
Second can someone quote definitively where in the Statute it confirms when the clock starts ticking on the 6 months prohibition from serving having received an improvement notice? Is it as I think when the improvement notice is issued or is it, as it should be, from the date the Council agrees they are happy that the notice has been complied with and all works demanded have been completed?
Hi IO. I’m not exactly what you call ‘Authoritative’ but the 3 types of notice are outlined here, accessible on Google fairly freely. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/465275/Retaliatory_Eviction_Guidance_Note.pdf
Personally I would like to see a requirement for a HHSRS inspection (paid for by the landlord, to take place within 3 days of the landlord requesting it) on any property that has a tenant evicted with a S21, before the property is allowed to be re-let.
All level 1 hazards should also have to be fixed before the re-letting along with important level 2 hazards. (Test being if a reasonable home owner would get the item fixed ASAP in their own home, even if doing do meant not being able to afford going on holiday that year.)
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Most middle class tenants will just leave when given the S21 notice, so there will never be an eviction case, but without the notice having to be “registered” somewhere, I can see have the service of a notice can be made to trigger the need for an inspection before re-letting.
Thank you Ben so it is an Improvement Notice and also an Emergency Remedial Action notice that cancels an existing or prevents the future issue of a s21 for 6 months from the date the Notice is served.
I agree that this will all be a damp squib. The vast majority of landlords will never be in a position to be anywhere near being served one of these two, and local authorities are under such pressure that it will take them for ever to serve them where they are needed.
In the largest and most representative survey of private landlords since 2010, just released by Shelter there was not one response of a landlord carrying out a retaliatory eviction. So at the most, less than 0.1%.
The survey was anonymous.
Landlords admitted breaking the law with tax evasion and illegal eviction but not (legal) retaliatory eviction.
Shelter were not revealed as the originators of the survey.
Retaliatory evictions was one of their big flagship causes. In a lengthy report full of one sided spin, it is not even mentioned once.
I predict the forthcoming tenant survey will ‘reveal’ a far higher percentage of retaliatory evictions whilst conveniently neglecting to mention the rent was also not paid, the property trashed and the neighbours lives made hell.