The End of Section 21 – Possession claims based on ‘bad tenant’ grounds

In the last post, I looked at what we could do to improve the eviction procedure where a tenant is in arrears of rent.

That is probably the most common reason why landlords want to evict. However, landlords will also want to recover possession on other ‘bad tenant’ related grounds.

For example:

• When the condition of the property or its furniture is deteriorating
• Where the tenant behaves in a (seriously) anti-social manner
• Where the tenant has been guilty of illegal activities at the property – such as running a brothel, dealing in drugs or some other criminal activity
• Where the tenant has failed to allow the landlord access to carry out inspections or get the annual gas inspection (and in due course the electrical inspection) done.

These are all circumstances where now a landlord would use section 21 as although there are grounds which would allow these under section 8, they are all discretionary grounds. So bringing a claim based on these would be prohibitively expensive.

The most difficult reforms of all

Eviction procedures based on ‘bad tenant’ grounds are the hardest to reform – as if tenants dispute the grounds (as they should have a legal right to do) this will normally necessitate a contested hearing which will be time-consuming and expensive for the landlord to bring.

This is unfair on the landlord if the tenant actually is guilty of any of these, particularly as it is highly unlikely that they will ever get their costs from the tenant.  Most landlords don’t even try.

In fact, the fear of being unable to evict for these reasons may well discourage many landlords from renting property at all.

If the eviction process is to be amended to give landlords anything like the protection they have against bad tenants that they do with section 21, then there will have to be fairly serious changes.

Here are some suggestions:

Failure to allow reasonable landlord access

The law places various obligations on landlords – for example, to carry out gas safety inspections once a year and to keep the property fit for human habitation. However, if the tenant fails to allow access, it is impossible for the landlord to comply.

Failure to allow access for gas safety inspections is particularly serious as a gas explosion could endanger the whole property and neighbouring properties.

Failure by a tenant to allow the landlord access could also be a sign of illegal activity such as the conversion of the property to a cannabis farm.

I would suggest that landlords should have a legal right to enter and inspect the property at least once every six months and that where a tenant fails to allow this, or fails to respond to requests for access, it should form the basis of a mandatory ground for possession.

The landlord would have to prove that at least three written requests have been served on the tenant at the property over a four week period (the final letter giving a statutory warning) with no response from the tenant. If the tenant then fails to respond to the court proceedings, the landlord should be entitled to a 14-day possession order.

But, you may say, what if the tenant is on holiday?  The answer is that tenants should be under an obligation to let their landlords know if they will be away from the property for more than, say, 28 days. This may be required for insurance purposes anyway.

Property and furniture deterioration

The ability of a landlord to use this type of ground in any new regime would have to be dependent on detailed property inventories and ‘schedules of condition’ being prepared at the start of the tenancy. So landlords will need to be a lot more careful about this.

One reason why landlords need a right of access (as discussed above) is to check the condition of the property.

Maybe the rules could be amended to show a presumption in favour of the landlord if he is able to file evidence to show, from independent accredited third parties such as inventory clerks, letting agents or a surveyor, that the property has been inspected and found to have seriously deteriorated since the start of the tenancy and (maybe) that there is a genuine danger that this will continue.

Criminal convictions and police complaints

If a tenant has been found guilty of a criminal offence which involves behaviour at the property (eg running a brothel) then this should entitle the landlord to a possession order as of right with no discretion for the Judge to entertain any defence.

Similar rules could apply if more than three separate complaints are made to the Police by separate individuals – particularly if the complaints are from other tenants in an HMO where tenants rent individual rooms in a shared house.

There should also be a process for landlords to recover possession quickly and easily if tenants have been given a custodial sentence of more than, say, six months.

Private landlords are not social services

These suggestions are for private landlords.  Different rules should apply for social housing.

My view has always been that you should not expect private individuals – landlords – to house ‘difficult’ and anti-social tenants against their will. This should be the job of the social housing sector. This is partly what it is there FOR.

This and previous governments have elected to sell off much of the social housing stock leaving little accommodation available for those in need – and seem to expect private landlords to step in to fill the void. However, the fact that the government has acted in this short-sighted way does not justify forcing private landlords to house tenants who fail to behave in a reasonable manner.

Proper records

There should also be a proper searchable database of possession orders giving the names of the tenants and the address of the property which landlords can search as part of their checks on prospective new tenants.

And in conclusion

In the past section 21 has been used for these situations in a non-confrontational way. As section 21 is ‘no fault’ landlords have not been forced to antagonise anti-social tenants by having to spell out why they are being evicted.

I predict that if section 21 can no longer be used there will be a lot more unpleasantness – and I for one am thankful that I no longer do this work!

It is also going be considerably more difficult for persons evicted on the bases set out above to obtain accommodation in the future – few private landlords will accept them and even if they are in a ‘priority need’ category Local Authorities will be able to refuse to help on the basis that they are ‘voluntarily homeless’. As their homelessness is as a result of their own behaviour.

As with my previous post, the ideas set out here are just suggestions.  But it is this sort of protection private landlords will want if they are to continue to rent their property without the protection of no-fault eviction under section 21.