Tag Archives: eviction

We shall not be moved

Andrew Arden QC and Robert Brown consider the rise and rise of the private rented sector and the corresponding need to afford more protection to tenants

Earlier this year, the English Housing Survey revealed that, for what it claims is the first time, the private rented sector was larger than the social rented sector; how accurate this is may be in doubt as, while concerned with stock rather than households, DCLG’s Live Table 104 identifies that the private rented sector was larger than the social rented sector in 1961. Be that as it may, in 2012-13, 4.0 million households in England rented from private sector landlords, while 3.7 million rented from social landlords. While the private rented sector is still considerably smaller than the owner-occupier group (comprising 14.3 million households in England), it is the largest growth area, having doubled in size since the turn of the century. The present government is keen to see this growth continue; the enhanced ability for local housing authorities to discharge their homelessness duties by placing applicants in the private sector is testament to this: Localism Act 2011, s.148 amending Housing Act 1996, s.193.

The rapid growth of the private rented has not been without problems. Rent aside, the two most important problems are security and conditions.

Tenants in the private rented sector have negligible security of tenure. Lettings are, by default, assured shorthold: Housing Act 1988, s.19A. All that is required before eviction is service of a notice telling the tenant that the landlord wants the property back after two months (HA 1988, s.21) followed by application to court for a possession order which, provided the right procedure is followed, can even be obtained without the need for a hearing (CPR 55.11-19).

While some of the private rented housing is very good, the sector also contains some of the worst stock: 9.3% of private rented homes have some form of damp problem (compared to 2.6% for owner-occupied properties and 5.4% across the social rented sector) – English Housing Survey, p.69. Indeed, 33% of dwellings in the private rented sector fail to meet the decent homes standard: English Housing Survey, p.42. By way of comparison, the equivalent proportions are 20% for owner-occupiers and 15% in the social rented sector.

Concerns have been raised about placing homeless applicants in such accommodation, to the point where the Minister for Housing, Kris Hopkins MP, felt compelled to write to the leaders of a number of local housing authorities, reminding them about the Homelessness (Suitability of Accommodation) (England) Order 2012, which includes the requirement that properties used to accommodate homeless households should be in reasonable physical condition, and about the “Gold Standard” scheme, “which aims to help local authorities raise the standard of their services to homeless people”.

It should not be like this. Tenants, whether renting in the private or social sectors and whether placed in it as homeless or not, have much the same rights so far as repair of their homes is concerned: s.11 of the Landlord and Tenant Act 1985 imposes an obligation on landlords of most residential tenancies to keep various parts of the dwelling in repair.

The difficulty for tenants in the private rented sector is enforcement, at which point the problems of security and condition collide. While it is not always plain sailing for those in the social sector, in the end a social landlord will normally carry out the necessary works. Lack of security of tenure in the private sector gives landlords an easy way out. Eviction is often a cheaper and easier option than carrying out repairs, especially given the growing demand for rental properties.

This blog has touched on the problem of “retaliatory eviction” before. Perhaps others are listening! The Government has launched a Review of Property Conditions in the Private Rented Sector. This not a full-blown consultation or any indication of policy direction. It is described as a “discussion document” and is the first stage of a review into property conditions. The Government is at pains to point out that the purpose of the discussion document is to stimulate debate. The discussion document sets out six areas of concern:

i. rights and responsibilities of tenants and landlords;

ii. retaliatory eviction;

iii. rent repayment orders;

iv. safety conditions;

v. licensing of rented housing; and

vi. the Housing Health and Safety Rating System.

It is the second of these with which this post is concerned.

The discussion document notes that there is

“anecdotal evidence to suggest that some tenants are concerned that if they request a repair or improvement to the property, their landlord will decide that the easiest course of action is to simply evict the tenant, rather than carrying out the repair or improvement.”

To say that there is “anecdotal evidence” downplays the problem: in housing terms, it is a given that to complain runs the risk of eviction, and it is sufficiently commonplace that every housing adviser has to factor it in when suggesting remedies to occupiers. For the first time, there is also now some – quite stunning – data. A recent investigation by Shelter suggests that 200,000 people had faced eviction in the previous year for having asked their landlord to fix a problem in their home. While it is true that (as pointed out by the Residential Landlords Association when it accused Shelter of “needlessly playing to people’s fears”) this figure includes those who weren’t actually evicted, it is still a staggeringly high number; nor is there any reason why people who complain about housing conditions should have to risk uncertainty and even distress especially now, when the private rented sector contains many, many more families with children than has been the case over the previous five decades.

If a tenant believes, rightly or wrongly, that eviction could be the result, it would be a bold move to complain. While the tenant could get a better (i.e. repaired) home, he could also end up with none at all. In some cases, tenants choose to keep quiet, even if they have a landlord who would be prepared to carry out repairs if asked. The fear is inherent to the nature of the relationship: however far we have travelled since all landlords wielded absolute, arbitrary authority, the relationship is one rooted in power imbalance – so deeply that it still has a psychological hangover which commonly ( not occasionally) inhibits tenants.

The suggestion put forward in the discussion document is to extend the restrictions on relying on a s.21 notice until the repairs have been carried out. At present, a landlord cannot rely on a s.21 notice where the property should have been licensed by a local authority but has not been (Housing Act 2004, ss 75 & 98) or where a deposit has been taken and not protected in accordance with a tenancy deposit scheme (Housing Act 2004, s.215). These prohibitions have been in force since in April 6, 2006, and April 6, 2007, respectively, and the sky has not fallen in on the private rented world. The discussion document considers the possibility of a similar prohibition applying where a property is in serious disrepair or needs major improvements.

A landlord would still be able to rely on any of the discretionary grounds for possession. It might be thought that this is acceptable on the basis that the court can consider the overall reasonableness of making an order for possession, as part of which the court would be able to take into account proceedings motivated by spite. In practice, however, this is marginal because the starting-point remains a level of default (arrears or ASB) sufficient to justify outright eviction (in the case of arrears, after any deduction for the counterclaim) before the issue of spite is relevant; many courts – maybe most – will take the view that what they will view as two wrongs don’t make a right; and, it is not difficult for the landlord to rebut the accusation with the simple answer that it is cheaper to repair vacant than occupied.

The landlord would also still be able to rely on the mandatory ground for possession for rent arrears, Ground 8. This applies where, broadly speaking, the tenant is two months’ behind on the rent, likewise subject to any disrepair counterclaim. In those cases, the court has no discretion and must make an order for possession. Restrictions on retaliatory eviction therefore do not come into play.

In both cases, therefore, the tenant who seeks repairs will need to be careful not to give rise to putatively legitimate grounds.

The two difficulties identified in the discussion document are how to identify an appropriate “trigger” for introducing a restriction and how to prevent spurious or vexatious complaints (which presumably would include those raised after the landlord has already begun – or threatened – eviction). The discussion document suggests that the appropriate trigger might be “following a local authority inspection or even later in the enforcement process.” It appears to be suggested that this sort of trigger would prevent spurious complaints that are designed merely to frustrate a landlord’s entitlement to possession.

To suggest that such an important protection as is being proposed should only apply once there has been a local authority inspection (or even later in the enforcement process) is surely to create yet another postcode lottery, in which the degree of protection afforded to tenants depends entirely on the relevant local authority’s willingness or ability to take action: many authorities now routinely fail to enforce lower level planning breaches simply because of cost; few authorities (if any) have reinforced their Tenancy Relations services to reflect the increase in the private rented sector; EHOs are massively overstretched (and were never in living memory one of those services which authorities resourced generously).

The better option could be to leave this as a matter for a court to adjudicate on: if it turns out that there is no disrepair, the court would be able to make an order for possession in the usual way; if, on the other hand, the tenant has made a complaint about disrepair and the landlord then serves a s.21 notice, the court should be able to presume that the notice is retaliatory and dismiss the claim for possession unless the landlord can satisfy it that the notice was not given to the tenant because of the exercise of his rights. A model, of sorts, can be found in employment law, where an employee who is dismissed because of whistleblowing (a “protected disclosure”) is treated as having been unfairly dismissed: Employment Rights Act 1996, Pt 4A & s.103A.

One possible problem with this is that many landlords serve a s.21 notice at the start of a tenancy, which they can then rely on at any point later on. The answer to that would be to implement the proposal put forward by the Law Commission in Renting Homes, so that a s.21 notice (or its equivalent under those proposals) lapses after four months if proceedings have not been commenced.

The alternative, as we have discussed previously, is for the courts to develop a positive defence of retaliatory eviction. One way to do this would be to acknowledge that an art.8 defence can be raised in the private sector, as the overwhelming body of Strasbourg law now seems to suggest (see, e.g., Tysiąc v. Poland (2007) 45 EHRR 42, Zehentner v. Austria (2011) 52 EHRR 22, Zrilić v. Croatia, Application no. 46726/11, 3 October 2013, and Brežec v Croatia [2014] HLR 3), and as the High Court has recently held (although, on the facts of the case it did not assist the occupiers): Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch). See also the minority judgment of Sir Alan Ward in Malik v. Fassenfelt [2013] EWCA Civ 798. On this scenario, retaliatory eviction would be deemed to be a disproportionate response to a (valid) complaint about disrepair.

The blog previously bemoaned the lack of legislative development on the issue of retaliatory eviction: while the discussion document states that it does not recommend any policy or legal changes, any measure to address retaliatory eviction will necessarily require the latter. Whether the implicit premise of the proposal – that (once the works have had to be carried out) most landlords, as reasonable people, will allow the tenant to remain and enjoy the benefit of the works – is correct is something only time could tell; for the moment, the proposal is not unattractive and – re-introduction of security and/or enhanced local authority resources aside – probably the best that is likely to be on offer.

Advertisements

Leave a comment

Filed under Uncategorized

Ass not what your landlord can do for you

Andrew Arden QC and Robert Brown consider the current Anti-social Behaviour, Crime and Policing Bill and describe how the latest extensions to the grounds for possession continue the policy of using social housing as both a carrot and a stick to control behaviour

Carrot-and-stick social housing policy is continued by the Government’s Anti-social Behaviour, Crime and Policing Bill shortly due to be passed: those considered deserving of social housing have the prospect of an allocation and even security of tenure dangled before them (see Social housing and the ‘deserving poor’), while those occupying social housing have the threat of eviction looming over them should they step out of line.

The Bill contains two radical extensions to the grounds for possession. First, it contains further provisions facilitating eviction without a court decision as to the reasonableness of an eviction – leaving the occupier dependent on the Government’s favourite new excuse for withholding conventional security, the virtually unachievable threshold of proportionality; secondly, it takes the final step to break the geographical link between ASB and the home as a ground for possession, spelling out (finally, as if it hadn’t long been clear that this is where the law was heading) the use of social housing as a tool for social control rather than the use of grounds for possession as a tool for the management of social housing.

This is the continuation of an approach that started with the ASBI in the Housing Act 1996 aimed at the media-fostered “neighbours from hell”, when – along with the ASBI – introductory tenancies were brought in and the nuisance and annoyance grounds for possession (Ground 2 for secure tenancies, Ground 14 for assured tenancies) were extended; it was developed by the Homelessness Act 2002 which put on a statutory footing the right of local housing authorities to exclude from waiting-lists those they considered guilty of ASB; it was given more teeth by the Anti-social Behaviour Act 2003, with the introduction of the demoted tenant and the change in language which shifted the ASBI from conduct actually causing – or likely to cause – a nuisance or annoyance to conduct merely capable of it; ignoring minor developments, we pause at the Localism Act 2011 amendments to allocations which made it even easier to exclude those deemed anti-social; we end (for the time being) with this Bill which retains the existing scope of the ASBI (albeit under the catchy new acronym “IPNA” – injunction to prevent nuisance and annoyance) and introduces these two new grounds for possession.

Civil libertarians have also had much to say about additional grounds for an IPNA: the universal ground (anyone, anywhere against anyone else) of harassment, alarm and distress (replacing the initial bid for conduct capable as in the ASBI which was rejected by the House of Lords leading to this compromise); and, “the Pilkington ground” (Fiona Pilkington killed herself and her disabled daughter after years of abusive conduct by local youths), conduct capable of causing nuisance or annoyance to a person in relation to occupation of residential premises. Neither of these is a housing law issue: the latter may be about housing, but that does not make it about housing law.

Changing the grounds for possession most certainly is. The first of the two new grounds is – in substance – a mandatory ground for possession, i.e. no reasonableness discretion, arising in any of five specific circumstances, in the case of a local authority landlord of a secure tenancy only preceded by an internal review à la introductory, demoted or flexible tenancy, where:

i. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence in, or in the locality of, the dwelling-house or against a person from that area or the landlord (a list of which is specified in a Schedule to be inserted into the Housing Act 1985);

ii. a court has found that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an IPNA in, or in the locality of, the dwelling-house or has breached a provision designed to protect a person from that area or the landlord;

iii. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a breach of a criminal behaviour order in, or in the locality of, the dwelling-house or has breached a provision designed to protect a person from that area or the landlord;

iv. the dwelling-house has been subject to a closure order; or

v. the tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under s.80(4) or s.82(8), Environmental Protection Act 1990, in relation to noise nuisance.

This is startling stuff: because you are a person against whom another order has been made, or because a member of your household is, or even because a visitor to your home (or a member of your household) is, out you may go. As under s.160A, 1996 Act as introduced by the Homelessness Act 2002 (no longer in force in England) which lumped the anti-social in with certain classes of immigrant to be excluded from allocations, this stigmatises people as a category to be excluded from social housing without regard to the extent of the conduct in question, its effect on others or its relevance to housing management. At least the 2002 amendment had the grace to qualify the exclusion in terms of being conduct so serious as to make the applicant unsuitable to be a tenant. Under this provision, that does not arise: commit the act – you are capable of being treated as unsuitable (evicted) of definition.

As for the discretionary ground, this arises when

“The tenant or an adult residing in the dwelling-house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom.”

This does not extend to visitors and is confined to other adult members of the household; it is subject to reasonableness; critically, however, it is applicable to any such conduct anywhere which not only makes the same “stigmatisation” or “definitional” proposition, albeit subject to judicial discretion, but also breaks the link between the conduct and occupation of a particular property (as stretched since 1996 to mean occupation within a particular area, which is, of course, still a geographical or land-based limitation).

Defenders of this rely on judicial discretion. There are more than 3,000 county court judges (circuit and district) – the range of views that may be adopted is very wide indeed; furthermore, the very fact that this ground is not linked (in some way) to home and/or locality (or landlord) where other provisions are (including some that are discretionary) means that this cannot be read into the grounds as a legally essential element of them, i.e. the argument that Parliament assumed courts would never make an order without that sort of link is unlikely to succeed (although whether such an order could withstand Art.8 scrutiny must be in doubt).

As we said in June 2012

“The idea that the punishment of eviction can extend to the family of a criminal, even in relation to conduct unconnected with the home, is offensive. In criminal law, one person of full age and capacity cannot usually be held to be responsible for the acts of another… Why does that apply with less force to social housing?” (Anti-social proposals?).

There’s another question we could also ask: draconian sanctions applicable to social housing tenants – including eviction – have thus far failed to stem the perceived tide of ASB nor is there the first shred of evidence that making them even more available to landlords will have any greater effect on the problem; what on earth makes the Government think it will be any different this time?

5 Comments

Filed under Allocations, Anti-social behaviour, Possession