The Government has taken the, slightly unusual, step of indicating that it will support a Private Members Bill by the Liberal Democrat MP, Sarah Tether. This means that the Bill will probably be allocated Parliamentary time and therefore has a good chance of becoming law.
The Bill is interesting as it is intended to bring an end to the practice of retaliatory or revenge eviction. This is the process indulged in by some less salubrious landlords of evicting tenants who complain about disrepair and the like by using the section 21 notice process. As there are no substantive defences to this process the disrepair cannot be used as a defence. Accordingly the landlord removes a tenant that stands up for their rights and replaces them with one that hopefully will not bother.
The Bill itself works by imposing a limitation on the service of a section 21 notice in specific circumstances. This will already be familiar to many landlords as a similar restriction is imposed where a tenancy deposit has not been properly protected or an HMO licence obtained.
Where the circumstances below arise then a s21 notice cannot be served for a period of six months. These include:
- Where a local authority has served an improvement notice, hazard awareness notice or a notice of intention to carry out emergency remedial action under the HHSRS;
- Where a tenant has made a legitimate complaint of disrepair under s11 and a category 1 or 2 hazard under the HHSRS exists; or
- Where the tenant has complained that the premises are prejudicial to health and a category 1 or 2 hazard under the HHSRS exists.
The provisions also allow for a local authority to certify that this is the case and there are to be regulations requiring them to do so within set time periods.
There is a further prohibition on serving a s21 notice where the property where no valid gas safety certificate exists or where the tenant has not been given an EPC where one is required.
There are new provisions in relation to s21 notices which require that they are given in a specified form in a similar manner to s8 notices and additionally there is a new, use it or lose it aspect to an s21 notice which means that it will no longer be effective 6 months after its date of expiry or after any court proceedings based on it have concluded.
Finally, the provisions in s8, Landlord & Tenant Act 1985 relating to fitness for human habitation are amended so that they apply to all assured shorthold tenancies entered into after a date to be specified.
This legislation is pretty far reaching. It introduces an obligation for premises to be fit for habitation into all ASTs for the first time. This has never previously existed. It also means that landlords will not be able to serve a s21 notice for a period of 6 months after a property has been reported to them in writing as being in disrepair. Given that most landlords rely on tenants to report all disrepair this means that a landlord who was, relatively speaking, innocent could find himself unable to serve such a notice as he had not become aware of the issue himself and it was reported by the tenant. This will make regular property inspections much more important.
There are weaknesses in this bill as drafted. First and foremost it used to be common practice for landlords to serve a s21 notice on all tenants near the start of the tenancy given. This practice is a little less common now but it still occurs. The obvious workaround for a landlord is to recommence this practice by serving an s21 notice at the outset of the tenancy to expire at the end of the fixed term. It will not come into effect until the end of that fixed term and will remain effective for a further 6 months. This would mean that if disrepair was reported the landlord could then activate the notice and proceed for possession, bypassing the restrictions.
The second major flaw (and this is probably the big one) is that it increases the pressure on hard-pressed local authority EHOs. They are already being asked to do increasing amounts with little or no extra budget (and often less). How they will be able to carry out a further round of property inspections in a limited timeframe is unknown.
Finally, there will now have to be a further amendment to the accelerated possession procedure to accommodate all these changes and this will mean that more of these will presumably proceed to hearings, further pressuring the county courts.
This is a tough one. Retaliatory eviciton damages tenant confidence in the Private Rental Sector and most good landlords would probably prefer that it was eliminated. However, there will be concern about the effect of further regulation and what it will mean.