Retaliatory evictions and proposed changes to the law

Assured shorthold tenants have limited security of tenure and some landlords would rather evict tenants who complain about poor conditions in their home than carry out repairs. This practice has been labelled “retaliatory eviction” and is a consequence of the assured shorthold tenancy regime which allows landlords to evict tenants without the need to establish any tenant default. Changes to the law are currently underway and last week amendments relating to retaliatory eviction were inserted into the Deregulation Bill. These amendments seek to provide tenants with a degree of protection in a system in which their long-term rights are limited.

Landlords have certain repairing obligations that they cannot avoid even when they have not provided the tenant with a written tenancy agreement. Section 11 of the Landlord and Tenant Act (LTA) 1985 places a duty on landlords to keep in repair the structure and exterior of dwelling as well as keeping in repair and proper working order the installations for the supply of water, gas and electricity and for sanitation and the installations for heating and hot water.

In addition, if tenants have reported disrepair to their landlord and works have not been completed within a reasonable time, tenants are able to contact their local Council’s environmental health department and ask for an environmental health officer (EHO) to carry out an inspection of the property. If the conditions at the property are harmful to health then the Council can take enforcement action against the landlord.

Some tenants worry about reporting disrepair and fear that if they do so, their landlord will hold it against them and may even use it as a reason to evict them from the property.

Retaliatory eviction (also called revenge eviction) is a term used in the private rented sector to describe a situation in which a landlord evicts a tenant in retaliation for the tenant asserting his or her rights and complaining about disrepair. The landlord is able to do this because an assured shorthold tenancy (the standard tenancy in the private sector), allows the landlord to serve a s21 notice (under s21 Housing Act 1988) to end the tenancy without the need to prove that the tenant has done anything wrong.

Retaliatory eviction has been described as a “by-product” of the assured shorthold tenancy system. It opens the way for a landlord to evict a tenant for complaining about disrepair without having to specifically state that this is the reason for terminating the tenancy. The landlord, aided by the huge demand for housing, can easily re-let the property to a new tenant without actually dealing with the complaint.

Changing the Law

There is hope that the law relating to retaliatory evictions is about to change. Last week the Government added amendments to the Deregulation Bill (currently awaiting its Third Reading in the House of Lords). The amendments are designed to protect tenants against the practice of retaliatory eviction where the tenants have raised a legitimate complaint about the condition of the property and a local authority has issued a notice confirming that repairs are necessary to avoid risk to health and safety.

A bill to end revenge eviction was first proposed by Liberal Democrat MP, Sarah Teather, last year (The Tenancies (Reform) Bill 2014-2015). Despite having cross-party support, the bill was talked out of Parliament and failed to complete its second reading stage.

Earlier this month the Department for Communities and Local Government published a policy statement announcing its intention to incorporate some of the original bill’s provisions (in modified form) into the Deregulation Bill. Clauses relating to retaliatory eviction were inserted into the Deregulation Bill on 11 February. The bill must now finish its progression through Parliament and receive Royal Assent to become law.

How do the provisions protect tenants from retaliatory eviction?

In summary:

1. Landlords will be prohibited from serving a s21 notice within 6 months of the service of a  “relevant notice.” A relevant notice is defined as:
a. An improvement notice relating to a category 1 hazard
b. An improvement notice relating to a category 2 hazard
c. An emergency remedial notice

(These are notices that local authorities can issue under the Housing Health and Safety Rating System (HHSRS) created by the Housing Act 2004. If following an inspection by an environmental health officer, category 1 or 2 hazards are identified, local authorities have the power to intervene and taken enforcement action).

2. A s21 notice will be invalid where before the s21 notice was given by the landlord, the tenant made a complaint in writing to the landlord regarding the condition of the property and the landlord did not provide a response within 14 days, or did not provide an adequate response, or gave a s21 notice in response to the complaint, and the tenant then complains to the local housing authority about the same matter causing the local authority to serve a “relevant notice” (defined above).

Tenants will therefore only be protected from eviction provided they complained to the landlord prior to the landlord serving the s21 notice and the local housing authority has confirmed that there are hazards that risk the tenant’s health and safety.

3. The court must strike out s21 possession proceedings, if before the possession order is made, the s21 notice is rendered invalid due to the above.

4. The court, however, is not able to set aside an order for possession made under s21 on the ground that the local authority’s relevant notice was served after the possession order was made.

5. There are exemptions where the s21 notice will not be invalid such as where the conditions of the property are as a result of the tenant’s own behaviour or where, at the time the s21 notice is given, the property is genuinely on the market for sale.

6. The Bill’s provisions do not have retrospective effect and, for the first three years, they will only apply to assured shorthold tenancies granted on or after the date on which the clauses come into force.

The bill itself still needs to finish its passage through Parliament and receive Royal Assent before its provisions take effect. Assuming that the bill does become law, the provisions raise a number of issues:

The tenant’s protection from eviction is dependent on the local authority confirming that there is a potential health and safety risk.  This must be done before the possession case gets to court, because once an order for possession is made under s21, the court is not able to set the order aside if the local authority’s notice is served after the order for possession is made. This creates a situation whereby tenants must work against the clock to arrange an environmental health inspection and obtain the required relevant notice before the order for possession is made.  It also relies on tenants being aware that they are able to contact their local council’s environmental health department and request an inspection.

The definition of “relevant notice” is also narrower than the proposals in Sarah Teather’s original bill. Hazard Awareness Notices under the Housing Act 2004 are not sufficient to invalidate the s21 notice.

Some argue that the new process simply delays the inevitable as once the 6 month time period has lapsed or the landlord carries out improvement works, in accordance with the local authority’s notice, there is nothing stopping the landlord from proceeding to evict the tenant in the usual way.  Thus while the practical effects of retaliatory eviction may be delayed, the principle of evicting tenants for complaining will not disappear. This seems to be an unavoidable consequence of the assured shorthold tenancy regime.

For the first three years, the provisions only apply to assured shorthold tenancies granted on or after the day on which the law comes into force. This means that the protection does not extend to current assured shorthold tenants who still remain vulnerable to retaliatory eviction.

Conclusion

Existing assured shorthold tenants who are worried about being evicted for complaining about disrepair should seek specialist advice on their legal rights. While the changes to the law on retaliatory eviction are yet to come into effect, landlords using the s21 procedure to evict tenants still face other restrictions; they must follow the correct legal process in order to obtain possession of the property. Landlords may also find that their s21 notice is invalid for other reasons such as failing to protect their tenant’s deposit properly.

We await the outcome of the Deregulation Bill’s passage and its impact on private sector tenants. In the meantime, for advice on tenants’ rights and disrepair please contact a member of our housing team on 020 7940 4060.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*