I’m going to write here about a piece of law that is little known about and even less used.
I’ve been training housing advisers and enforcement officers since 1998 and yet nobody seems to have picked up on this.
It’s a TRO type of thing and should be known by all rogue landlord enforcement officers and rogue landlords hoping to stay off the books.
Before I get to the sting in the tail let me first set the scene.
Setting the scene
Down the years as a writer and blogger on matters landlord/tenant related I often find it difficult to get people to understand just how mad, illegal, irrational and downright nasty the rogue landlord world is when you come at it from the perspective a normal law abiding citizen.
I have recently become embroiled in a number of cases in different local authorities, where the landlords have not issued their tenants with written agreements.
Normal landlords would not unreasonably comment “Why would you not do this?” but the mind and intentions of the rogue landlord community is often a world away from normal landlords, simply because their overall aim is criminal activity and cash without liability.
Many tenants also accept this kind of nod and a wink approach to renting as either normal or unavoidable because they are at the bottom of the heap in terms of choice and/or don’t know any better.
These same landlords rarely provide receipts for rent paid either, in an attempt to airbrush themselves out of the investigative routes that would lead HMRC to their door.
So how do you deal with dodgy practitioners trying to evade detection and prosecution by simply not providing a written tenancy agreement?
As Al Pacino says in that seminal scene in Scarface when he whips out an M16 with a grenade launcher “Say ‘allo to my leetle friend”, welcome to Section 97 of the Housing Act 1996.
Section 97 of the Housing Act 1996
As we know from the Law of Property Act 1925 and the later Street v. Mountford (1986) and the legal principle of ‘Parol’ you don’t need a written tenancy agreement in order to be a tenant.
It is commonly understood that a Statutory Periodic Tenancy is automatically created when a previous fixed term AST expires, but no so commonly understood that a periodic tenancy can be created from the get go by the failure to have a fixed term attached.
Many writers on this subject, including the standard issue law books usually say that tenancies that begin as periodic from the start are quite unusual but go into any grotty, unlicensed HMO and you will find they are standard practice, the absence of any fixed term creating a periodic tenancy by default.
Section 20 to the Housing Act 1988
Section 97 however tells us the following amendment, section 20 to the Housing Act 1988:
“Subject to subsection (3) below, a tenant under an assured shorthold tenancy to which section 19A above applies may, by notice in writing, require the landlord under that tenancy to provide him with a written statement of any term of the tenancy which—
(a) falls within subsection (2) below, and
(b) is not evidenced in writing.
Basically a tenancy created with no written agreement allows a tenant to serve a notice on the landlord demanding that the landlord provide a statement of the terms of that agreement.
Section 97 goes on to say:
“A landlord who fails, without reasonable excuse, to comply with a notice under subsection (1) above within the period of 28 days beginning with the date on which he received the notice is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”
Scale 4 fines are currently £2,500
So there it is…..a lost opportunity for dealing with rogue landlords for the lack of awareness.
Any housing advisers or rogue landlord enforcement officers reading this please take note.
Section 97 is a major weapon in your armoury against rogue landlords. Get on it!
I don’t see this Ben.
First the tenant has to demand the information, so it is the tenant that needs to know of their rights and enforce them, not TROs.
Second assuming a tenant does that, what do you think the next piece of paper the landlord gives them will be – if indeed the Landlord gives them a piece of paper. In the scenarios you pain they would probably just throw them out.
I’m not saying its a magic bullet. It is as usual fraught with its own problems but it has its uses.
The leislation refers to the request being made by tenant but the criminal penalty means it will be the local authority that prosecutes. In practe it would be the TRO who drafts and serves the request in the tenant’s name.
The landlord has to provide the date the tenancy started, the rent payable, the length of the fixed term, any terms providing for a review of the rent.
If the landlord doesnt provide the terms then the penalty can be applied for, if they do but the terms dont match the tenant’s expectation then then you have something solid to argue over/negotiate with.
As for the landlrod throwing the tenant out for being a pain bear in mind that with no written agreement the landlrod cant use accelerated possession so the tenant has a shot at defending and counterclaiming, also with no written agreement the landlord cant deduct from the deposit.
And to be honest, when you are a TRO being a pain can be a very usueful tactical ploy. Rogue landlords being far more inclined to moderate their behaviour when you bring hassle into their life – in fact I would say that 80% of TRO work is doing just that
With regard to the receipts you could also argue that as many of these tenants will be charged a weekly rent, the law says they should be provided with a rent book (s.4 L&T Act 85). Again, an offence not to provide this and landlords can get fined. How many of those prosecutions do you see? Mostly for the same reasons as the comment above, any tenant brave enough to bother asking for one will likely get another bit of paper through their door – if they’re lucky of course.
@Paul
Only if the rent is due weekly, as opposed to being accepted weekly to make it up over a month
@Ben
I disagree – the Statute says if the tenant demands it, not their Aunt Nellie or a TRO.
I/O thats exactly what I said. The TRO or similar works with the tenant to demand the terms. Aunt Nelly doesnt come into it and while we are on the subject, leave my Aunt Nellie alone haha
As others have said – the tenant without a contract trying this will very likely get evicted Ben. Tenants with a contract / in a fixed term could certainly try it though. But they won’t get a renewal. This right to redress is really just another hollow one. (and landlords know it)
@ Rent Rebel
Why if the tenant had a contract would he need to demand its core terms from the Landlord?!!!!!
Yeah but Reb, what’s the alternative? Shut up and take it?
The TRO game is a multiple, tactical one, if they use their imagination. If demands for terms results in an illegal eviction then you have the gift in your lap, if it forces them through a legal process that fails then you have them that way.
The only obstacle is people too intimidated to make waves and every TRO I know has seen that one. The complaint comes in but they dont want you to contact the landlord, in which case there is nothing you can do. its human nature, nobody wants to lose their home or face violence or threats
The system needs to change on so many levels if tenants are going to feel confident about gong head to head over their rights, even with TRO support
What is the aim for a TRO when making such request?
For example, is it to try to slap an extra fine on the landlord? Or is it to try to have the landlord confirm the existence of a tenancy?
(Not too sure what periodic tenancies have to do with it, though)
I wouldn’t rent an place without a written tenancy agreement. How could I protect my rights when there’s nothing “on paper”?
If you are a ‘rogue tenant’ you could argue there are great advantages of having nothing written down. How does a landlord prove and recover rent arrears or damage or lawfully evict a tenant that has nothing written down, no receipts, no inventory etc – no ‘how to rent’ guide! A tenancy agreement is often as much in the interests of the landlord as the tenant.
@Paul you are absolutely correct, no written agreement plays into the hands of the tenant in many respects but the reason rogue landlords do it is to erase any paper trail that could implicate them in tax inspection. It isnt the only thing they do but an oral agreement is part of the overall avoidance scam.
These bottom feeding parasites are simply not interested in the wider implications, its just cash in the pocket and a tap to the side of the nose. This is what I have signally failed so far to get across to the normal landlord community, despite writing on these matters on Tessa’s blog for many years now. You just dont get it but anyone in enforcement teams simply smiles and nods to as it is their daily grind. ITs what is going on out there all day, everyday. I have dealt with two scam arrangements like this since 9am this morning. Business as usual.
@Lucas yes I’m sure you would and you would be right to. I’m a private tenant and I make sure everything that happens between my landlord and agent is on the money but there is an army of tenants out there who dont know this stuff. Kids straight out of care, people with what are termed ‘Chaotic lifestyles’ having spent years in mental institutions or living a life addled by drink or drugs, poeople form abroad and not even illegal immigrants, just people who dont know how the UK renting system works. All of these are prey to scammers, fraudsters and human vermin dressed up as landlords.
I have dealt with little else in 26 years.
Reb is right though in nailing the issue that trying to deal with your tenant rights is a pointless exercise in an environment where section 21 exists. It does protect landlords from nightmare tenants to an extent but it also allows landlords to evict tenants because they can get more rent out of tenants who are able to pay more and it allows landlords to evict tenants who merely stand up for their rights.
Most of whom end up at the doors of the homelessness unit who are forced by law to rehouse at tax payers expense, meaning all us non landlord tax payers are paying for it