Possession! The nine tenths of the law

It’s not the first time we’ve discussed the prospective Housing and Planning Bill 2015-2016, and we doubt it will be the last. Criticism over its contents are clear and plentiful. Chapter 5, Part 3 of the Bill is decidedly dubious over its changes to existing laws on the recovery of abandoned premises in England for private landlords, who of course we all know, are not always the most honest of landlords.

The day was August 14th 1941, Prime Minister Winston Churchill met with U.S. President Franklin D. Roosevelt aboard the U.S.S. Augusta in Placentia Bay, Newfoundland to deliberate their aims for the war. In that moment, it was decided that every person was entitled to freedom of property and freedom from want amongst other things. These freedoms were later incorporated into the Universal Declaration on Human Rights and later into the European Convention on Fundamental Freedoms and Human Rights (ECHR). Fundamentally, we agreed in these international treaties, that no person shall be seized from his home without due process under law. It is these principles that are the foundation of our laws today, and yet, ones that the current government seem to be openly defying.

Section 55 of the Bill gives permission to private landlords to serve notices on tenants to end an assured shorthold tenancy (AST) when:

• The tenancy relates to premises within England;
• Rent payable is unpaid for a term of eight weeks or otherwise unpaid as prescribed and identified by the Act;
• A warning notice has been served;
• And the tenant has not provided a response within a specified time frame.

Effectively, the new legislation means that if a landlord believes that a rented property has been abandoned and there has been non-payment of rent, they can take possession without having gone through the court procedure. The requirements for the warning notices themselves are contained within section 57 of the Bill. In accordance with this section, three warning notices must be served, at different times, two to be sent to or delivered to the property in question and one to be fixed to some part of the premises in accordance with this section. The contents of the notice must contain as follows:

• That the landlord believes the premises to have been abandoned; and
• That the tenant or a named occupier must respond in writing before a specified date if the premises have not been abandoned; and
• That the landlord proposes to bring the tenancy to an end if neither the tenant nor a named occupier responds in writing before that date.

Now, the reasoning behind the policy is to reform abandonment, and enable more privately rented property to be more effectively recycled, which is arguably not a bad thing at all. If the property it is not in use, this is visibly obvious, and the landlord is not receiving any rental income he is duly owed, surely it makes sense for the landlord to reclaim possession without having the dubious task of issuing proceedings and acquiring the property he or she will inevitably get anyway. The problem primarily lies in what I discussed earlier. What happened to due process under law?

Our concerns lie not in a landlord’s ability to recover possession of their property, but in how it is done. It is always been democratic process for a person to have the opportunity of pleading their case to the courts, no matter however hopeless their arguments may be. Not to mention, the risk that those more vulnerable could be most affected under the changes.

The Housing department was once consulted by a client who suffered with severe paranoia, which alone meant that he was afraid to open his post. Should such a client, who is clearly disadvantaged, not be given an opportunity to respond to his landlord by way of his disability? And what if he simply never received it?

While under section 52, a person may apply to the county court for an order reinstating the tenancy agreement if they provide good reason for failing to respond to the notice, whether this would be covered by legal aid is unclear. Someone who suffers with severe mental or even physical health issues would generally not have the money to fund their case, and they surely could not be expected to act as a litigant in person. Moreover, what prevents a landlord from misleading the tenant and incorrectly dating notices and without clarity on what a “conspicuous part of the premises” is, fixing it to a part of the property that both the landlord and tenant are aware sees no use, such as a rear door.

We are not contending that the above changes are all bad, indeed for landlords they are a blessing. We are simply arguing that it has always been the case that a person deserves to have their case heard, and to hear the case brought against them. We are arguing in favour of the due process of law.