Retaliatory Eviction – a solution?

Andrew Arden QC and Clare Cullen consider the proposed restrictions on retaliatory eviction

Introduction

This blog has previously commented on retaliatory evictions of assured shorthold tenants (see Retaliatory Eviction”, August 13, 2012, and We shall not be moved, March 18, 2014). The Citizens Advice Bureau’s report, The tenant’s dilemma”, June 2007, proposed giving a judge discretion to “overrule” a section 21 notice where the tenant raised and proved a case of retaliatory eviction. In “Review of Property Conditions in the Private Rented Sector”, February 2014, DCLG suggested that any restriction on a section 21 notice should be reserved for “serious cases of disrepair” only (e.g. category 1 hazards).

 

Sarah Teather’s Private Members’ Bill is the first active step in this area and, on September 11, 2014, the Government announced that it was supporting the Bill “in principle” albeit that its support is on condition that it “only targets bad landlords and cannot be used by tenants to frustrate legitimate evictions.”

 

Draft Bill

Notice following action by local authority

The Bill is exclusively concerned with assured shorthold tenants rather than any others who have no – or no real – security. Under its cl.1, if relevant condition is met, a s.21, Housing Act 1988, notice qualifies as retaliatory eviction and, as such, is intended to be wholly ineffective. The condition is that the s.21 notice is given within six months of service by the local authority of one of a number of specified disrepair notices (improvement notice under ss.11 or 12, hazard awareness notice under ss.28 or 29, notice of emergency remedial action under s.40(7), all of Housing Act 2004).

 

As drafted, the proposal would not be restricted to retaliatory eviction in the context of disrepair; of course, a landlord could always serve a s.8 notice for, e.g., arrears, but if the retaliation is because the tenant has dome something which the landlord does not like, there is no apparent room for manoeuvre. This is probably a good thing but, on the other hand, might incline the courts to come up with their own limits which, in turn, may be risky.

 

Whether or not for that reason, another problem is that the way the proposal is drafted does not entirely rule out the possibility that the courts will treat the s.21 notice as valid from after the six month period; while this is unlikely, so were some of the decisions on the deposit laws – which effectively gutted the provisions – before their amendment by statute, and it would be preferable to spell out the consequences than to leave them to be explored by the courts.

 

Disrepair complaint

A second category of retaliatory eviction arises when a s.21 notice is served within six months of a written complaint to the landlord about disrepair in the premises, meaning disrepair within s.11, Landlord and Tenant Act 1985, or premises in such a state as to be prejudicial to the health of the occupants (statutory nuisance). For this provision to take effect there must be either a category 1 or “relevant” category 2 hazard in the premises (to be prescribed). The complaint must have been in writing. The disrepair must not be the tenant’s responsibility (which excludes an act or omission consisting of normal domestic usage of the premises).

 

The provision is not well drafted: it is left unclear whether the condition has to have existed at the date of the written complaint or as at the date when the notice is issued or even as at the date of hearing.

 

To prove that a hazard (of either kind) existed, a certificate from the local housing authority will be conclusive evidence but it is also unclear whether a tenant could choose to prove the condition in some other way, e.g. independent, expert evidence. Either way, this is something of a hurdle, but it is exacerbated by a somewhat surprising – not to say unprecedented – provision that the s.21 notice is not prohibited if the landlord does not consider that the relevant condition is met, in which case (lending credibility but probably not certainty to the proposition that independent evidence is admissible) a certificate of the authority confirming the condition appears to be necessary, i.e. the only way to prove the condition. This may be difficult to obtain although ancillary provisions include regulations which (among other matters) must address local authority responses, prescribed form of certificate and what matters are to be treated as the tenant’s responsibility.

 

Gas Safety and Energy Performance Certificates

Landlords have obligations in relation to gas safety and energy performance, including the supply of certificates to the tenant: no s.21 notice may be served so long as a landlord is in breach of the duty to provide those certificates.

 

Section 21 notices

It is proposed both that these should be in prescribed form, and that they should have a limited life (six months), the latter presumably so as to end the practice of servicng notice immediately after the grant (also see “We shall not be moved”).

 

Fitness for Human Habitation

Finally, it is proposed to amend s.8, Landlord and Tenant Act 1985, to require shorthold premises to be fit for human habitation at the commencement of the tenancy, and for the landlord to maintain them as such throughout the tenancy – although, oddly, this is not in itself a ground for barring a notice (nor is unfitness under the 1985 Act synonymous either with s.11 or a hazard under the 2004 Act: to the contrary, the 1985 Act adheres to the unsatisfactory unfitness laws which the Housing Health and Safety Rating System replaced).

 

Comment

The Bill is good news but it badly needs re-drafting and – now that the government has said it will support it – that is something that will be undertaken: how much of the substance of the Bill survives that exercise may, however, be a different question.

 

Nor does the Bill go far enough: the involvement of the local authority in both the principal provisions means that – as observed in the post We shall not be moved” – it will be something of a postcode lottery; proving the condition for the “complaint” proposal otherwise than through the authority will be costly and public funding will probably not be available and, in any event, buys no more than an additional six months, although the reality may well be less because the six month time limit dates from the notice or complaint, so that notice can be re-served as soon as it is up, which may be only three or four months from when the “bad” (prohibited, retaliatory) notice itself was given.

 

These criticisms may seem churlish but the danger is that if the proposals are ineffective – because they have not been thought fully through or drafted carefully enough to make them worth operating – it sets back the cause of a much sounder, more protective approach, just because they do not work. The Bill needs much, much more attention – and from supportive hands – before it goes further.

 

The reality is probably that the Bill will not become law before the next election: its best use may yet be to force the issue of retaliatory eviction onto the agendas of all parties so that, whoever wins, at least some protection against this activity does finally arrive.

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