Retaliatory Evictions: a reassuring change in the law for tenants

“But if I complain, the landlord will just kick me out”: I have lost count of the number of times a client has informed me of disrepair at their home – often resulting in awful living conditions – but has decided to not pursue any action, in the fear that the landlord will simply seek possession of the property. Tenants under an assured short hold tenancy have long faced the real risk that if they make the smallest complaint to the landlord, they will find a section 21 notice soon landing on their doormat. With such a notice the landlord does not need to rely on any ground for eviction; the clock simply starts ticking for an inevitable possession order and eviction date. The Government estimates that over 200,000 people are affected by retaliatory evictions each year – so it’s high time for a change.

In less than six weeks this change will begin to happen. From 1 October 2015, section 33 of the Deregulation Act 2015 will come into force, and will provide far greater protection for eviction to tenants who have complained about disrepair to their private sector landlord.

What has changed?

Under this new act, a private sector landlord’s ability to serve and rely on a section 21 notice in England to seek possession of their property rented under an assured shorthold tenancy granted on or after 1 October 2015 will now be restricted any context of alleged disrepair. There are a number of stages:

• If an assured short hold tenant complains in writing about the condition of their home (or common parts),
• but the landlord fails to respond within 14 days of the initial complaint or fails to respond “adequately”,
• and where the tenant has then complained to a local authority’s Environmental Health team, who then serve a relevant notice on the landlord,
• only then will any section 21 notice which has been served after the complaint has been made to the landlord be invalid.

The Act expands on this more fully:

• If the tenant is not provided with the landlord’s e-mail or postal address, or has made reasonable efforts to contact the landlord in order to make a complaint but was unsuccessful in doing so, then the requirement that the complaint in writing does not apply.
• For the landlord’s response to be deemed “adequate”, he must set out a “description of action” he will take to address the complaint, as well as set out a “reasonable timescale” for the action to take place.

What should tenants know?

A tenant can only benefit from this protection of retaliatory eviction if:

• he has used the property in a “tenant-like manner” and not breached an express related term of the tenancy,
• the property is not genuinely on the market for sale,
• the landlord is not a private registered provider of social housing

A tenant is therefore encouraged to keep a record of his written complaints to his landlord and if he does not get an adequate response to not hesitate to contact his local authority’s environmental health team – and keep chasing them to serve a notice on the landlord.

Tenants should make every effort to look after the property themselves; if there is any evidence that he himself has breached any tenancy terms regarding good repair, then he won’t be able to rely on the protection offered by this Act.

What should landlords know?

Clearly it will be imperative that landlords respond properly and swiftly to a tenant’s complaints about disrepair. If the landlord abides by his duties to keep the property in good repair then relying on a s.21 notice further down the line should not be a problem.

The Act will also prevent a landlord serving a s.21 notice within the first 4 months of a short hold tenancy.

Comment

This is a welcome attempt by Parliament to protect certain tenants from the all too common threat of retaliatory eviction – but time will tell how effective it will be in practice. The Act assumes that tenants will know they have the right (and need) to report matters to a Local authority Environmental Health team. These teams are already over-stretched and no doubt it will take them some time from receiving a complaint to actually serve an Improvement Notice or Emergency Remedial Notice upon the landlord; if they never get round to it then the landlord will be free to rely on the s.21 notice.

The Housing Team at Hodge Jones & Allen is geared up for these changes and keen to advise our clients – both tenants and private landlords – of the implications of this change for them. Do get in touch!