One of the big problems faced by tenants and indeed the authorities, in dealing with sub standard properties is that of retaliatory eviction.
Tenants DO have rights regarding the condition of their property if their landlord fails to do repairs when asked:
- For minor things they can get the work done themselves (so long as they follow the proper procedure) and deduct the (reasonable) cost from their rent
- For more serious matters, they can apply to the court (if their landlord has failed to deal with the problem after being sent letters required by the court ‘pre action protocol’) for an injunction ordering the landlord to do the work and for financial compensation to be paid to them.
There is a problem with this however.
The problem with enforcing your rights
Although most landlords will behave responsibly and deal promptly with complaints about repairs, a few (or maybe more than a few) will just brand the tenants as ‘troublemakers’ and evict them.
This is not illegal. An eviction order under section 21 can often obtained by the landlord within six months. Few disrepair claims will have progressed very far in that time.
In most cases an eviction order will stop the tenant’s claim dead in its tracks. For example if legal aid has been obtained, it will normally be cancelled if the tenant is no longer living at the property.
If the tenant is funding the proceedings himself, he will probably have been evicted from the property by the time his case comes to trial, meaning that his claim would then be limited to compensation. Most tenants will have lost heart by then.
The tenants dilemma
This is not a new problem. Way back in 2007 the CAB published a report called The Tenants Dilemma highlighting this, and providing case studies.
However although few people will condone retaliatory eviction, it is difficult to find a way to deal with it satisfactorily. The solution generally suggested is to strengthen tenants rights – eg by giving a ‘retaliatory eviction’ defence to section 21 claims.
However there are fears that this could discourage landlords from investing in the PRS, worried that dishonest tenants will invent false retaliatory evictions simply to stall the eviction process and allow them to live longer at the property (often without paying rent). This would almost certainly happen.
However, there is another solution.
The landlords register solution
It could work like this. Lets say that a tenant, living in a substandard HMO, reports this to the Housing Department of his local authority. Or it could be a concerned parent of a student tenant, or even a friend of the tenant who makes the report or complaint.
Once the complaint is made, in due course the Local Authority will attend at the property and carry out a Housing Health and Safety Rating System (HHSRS) inspection (as per the Housing Act 2004).
If as a result of this inspection they find any ‘category 1’ hazards, the landlord would be given a specified period of time to get the repair work done. If he did not do this, it would go on the Register.
Possible penalties
This could trigger automatic penalties. For example:
- Section 21 could be forbidden until after the work was certified as completed
- Tenants would be entitled to withhold rent
- For a serious non compliance, the landlord could receive an automatic fine on a pre determined scale depending on the level of disrepair
- He would also be at risk of losing his accredited landlord status, and
- In some circumstances maybe the tenants could apply to buy the property
Landlords would be entitled to appeal against this – one ground for appeal could be that the tenants themselves are responsible for the disrepair. If this is found to be the case, it could form the basis of a mandatory ground for eviction.
Removing the tenants would not remove the problem
The big advantage would be that that removing the tenant would not remove the problem (from the landlords point of view). The disrepair record would remain on the register until an inspection showed that the works had been done.
So there would be no point in retaliating by eviction.
A few other thoughts
- If tenants were able to pay their rent into the system (to protect them from a claim for non payment of rent), then this could be used to pay for the repair work – so the landlord could not claim he was out of pocket because he did not have his rent
- If the landlord is fined, this could be paid by tenants paying rent direct to the system
- These fines along with any interest on the rent paid in, could help to fund the system
- There could be standard rates of compensation paid to tenants (or which they could offset against future rent) for disrepair which could be assessed by EHOs – landlords could appeal these to the County Court or Property Tribunal
This is all just an idea and I expect people will have lots of objections to throw at it.
For example landlords may be unhappy at the power placed in the hands of Local Authority inspectors who they may feel are biased against landlords. This does seem to be a problem with some LA workers.
But a system like this WOULD help solve the retaliatory eviction problem.
What do you think?
Every single time I deal with a complaint made by a tenant that requires me to contact the landlord I warn them that the likely result will be loss of their home.
I like your idea of a system through which nothing would be gained by the landlord evicting after a complaint but I think many aggreived landlords will still do it on principle, even though they may have to comply.
It isn’t just property conditions that are the problem either. Complaints of harassment similarly end up with home loss.
A few months back I received a complaint from a female tenant that her lodger landlord kept going into her room while she was out and rifling through her knicker drawer.She had evidence. I pointed out that she had very little security, having a resident landlord but she wanted me to warn him off. I did. 28 days later she was sofa surfing.
There is very little a legal system can do to change nasty vindictive landlords.
All it can do is make it less worthwhile for them to evict their tenants through malice.
Anything like this that protects both the tenant (so work is carried out) and the landlord (so he is paid) must be a good thing.
I don’t know the full ins and outs, but could this be set-up as an independent body and landlords who opt-in prove they are trustworthy to tenants?
The new online tech sites, sort of dating sites for tenants to meet landlords, with mutual appraisal might sort this out, where used. But that’s the problem: the baddies evade registartion, appraisal, skip bail, are already abroad… etc. Good idea though!
Sounds like the burden of proof needed for a section 21 is too low, if landlords can use it in this way in the first place. Why not try to get that changed?
I think the whole short assured tenancy needs got rid of, and we need proper tenancy agreements, like assured tenancies.
I should have said that I do like your proposals, but the discussion just raises the issue that tenants have no security of tenure in the first place. And, even if you stop essentially groundless section 21 evictions, that still means that the landlord can increase the rent to essentially make an ‘economic eviction’. Which means that we need rent regulation to stop economic evictions as well.
@ jonb
There is no “burden of proof” on a s21 possession that is the whole point. Just needs the legal paperwork to be in order and the Judge MUST grant an Order (or risk rapped knuckles from a Circuit Judge).
Landlords cannot increase the rent beyond market rates. Otherwise they fail at an RAC appeal.
Not sure landlords need more bureaucracy. It would mean councils having to employ inspectors at more cost to the taxpayer. Why don’t tenants vote with their feet? If they are not happy with their property they should move out and take their money elsewhere. The level of rent paid should also be a consideration. Downmarket properties will only attract a lower rental. One person’s “disrepair” equals another person’s cheap rent. Whatever system is used to control rogue landlords will only punish the responsible majority unless it’s a model of simplicity.
In principle it sounds like a good system. Not so sure that rents being paid over to the council is a good thing though…. perhaps another body. Councils are already far too bureaucratic.
Unfortunately using the current system of LA inspectors means the process is a long drawn out one. Improvements in living conditions would be slow, so unless they employed more inspectors then it won’t change a great deal in the short term but in the long term might make some of them very wary.
Making tenancies back to Assured would just reduce the PRS. Lets all remember the PRS works well for many.
Some tenants are happy to play with this type of landlord. They don’t carry out credit checks/ referencing procedures and quote cheap rents. You get what you pay for. If a landlord wasn’t interested in me as a tenant then I’d be asking myself how much does he care about the property.
Selective licensing brought in by a number of councils failed to stop the bad landlords. All it did was land the good landlords with yet more paper filling and extra cost, which in turn reflected in the rents they charged.
Online sites charge for being a member. I know as a letting agent if I joined everyone that approached me to say ‘prove you are good’ it would cost a small fortune.
Making bad landlords/letting agents accountable has to be for the good of the PRS. Simple is always easier to administer
This is a non starter for the simple reason that if you start giving EHOs additional reasons and rights to inspect a property Landlords will sell up in droves. Why?
Because the HHSRS assessment will not be restricted simply to the alleged damp wall (probably condensation) or draughty window that the tenant is counterclaiming against eviction for. The assessment will cover all 29 potential hazards.
This greater protection for the tenant is all linked to the ideas on Assured Longhold and all sorts of other thoughts that have been kicked around for years and got nowhere.
The comment on tenants inventing alleged repairing failures on the part of the Landlord is a very relevant one. Tenants need little help in being creative when it comes to frivolous defences anyway – just look at the TDP situation with no minimum dispute amount needed ort in many cases from adjudications I have seen, very little solid evidence from the tenant!!
Take away mandatory possession and just watch what happens to the PRS. Don’t go there you’ll regret it!!
The frustrating thing in all this is that there doesn’t seem to be a solution that treads a fair line. Bring in legislation that protects tenants and gives them stability and all landlords will scream blue murder and accuse government of trying to kill off the PRS. Leave things as they are and the growing army of tenants are constantly being drained of money for rent with little control over their own lives and repeatedly having to relocate their families.
Its an endless see-saw when one party can only be up if the other one is down.
The argument that licencing will affect the decent landlords is just one of those things. Criminal landlords and dreadful property standards are simply too widespread to leave unchecked and the industry cant or wont do anything other than complain about licensing, so the controls will have to come from elsewhere.
I’m one of those workers who’s job it is to police the PRS and who are expected to use criminal prosecution to bring the bad boys to heel whilst leaving the decent ones alone but criminal action is so time and resource draining for little return or deterrent that it is less than useless when dealing with the criminals who believe me are still numerous.
I spent this afternoon information swapping with the enforcement team of the energy company EDF gathering evidence on a number of local landlords and agents who are perpetrating multiple frauds and breaches and getting away with it because the prosecuting legislation is so unwieldy.
They told a typical tale of frustration of a landlord known to them and us who runs cannabis farms, steals electricity running into tens of thousands of pounds, perpetrates illegal evictions and ignores planning orders. It took them over 2 years to get him into the high court and their star witness was deported before trial.
This is just an everyday story that TROs EHOs etc across the land will recognise.
We need quick, effective tools to take these people off the board. If decent landlords feel trapped by that, then I’m sorry but I don’t have a problem with it.
“There is very little a legal system can do to change nasty vindictive landlords.”
It can encourage landlords to behave fairly and reasonably rather than penalising them. As Rentergirl said, the baddies will ignore it anyway.
Well meaning tinkering with section 21 will only lead to decent landlords giving up leaving more opportunities for the Rachmans.
Idea: remove s.21 and create more mandatory grounds in Schedule 2, so that a landlord could be *sure* of a possession order if, and only if, the tenant were in breach of contract, or causing damage or nuisance, etc.
‘Good’ tenants could then enjoy long-term security without fear of retaliatory eviction; ‘bad’ tenants could be easily evicted. It would encourage *both* sides to comply with their obligations.
However, an existing problem as regards s.8 claims would need to be addressed. Many tenants counterclaim for damages for spurious or deliberately caused disrepair when the landlord applies to evict under Ground 8; if the s.21 ‘no fault’ safety net were to be removed, it would have to be balanced by ‘no excuses’ for unpaid rent (somehow; statute would have to override Lee-Parker v Izzet, and disrepair claims be kept entirely separate to possession proceedings).
As the Author of ‘the Tenant’s dilemma i still get regular emails from tenants’ who are frustrated by the hefty price they face for merely exercising their statutory rights.
We do not stand a chance of improving peoples living conditions to pull children and the elderly out of poverty until this loop-hole is closed. In my report I suggested a method that has been in practice in the US for 46 years and has been adopted by other countries that have similar tenants laws to us such as Australia and New Zealand.
The Government want to improve energy efficiency standards in private rental housing, again it relies on the tenant to report a landlord who doesn’t comply. Yet again there is no protection from retaliatory’ evictions.