Having been sent links to the Tenancies (Reform) Bill, I thought I ought to take a quick look at it.
By way of introduction, this bill has been drafted to try to prevent landlords from evicting tenants who complain about the poor condition of their properties – the practice known as retaliatory eviction.
Which is quite right and proper – landlords should NOT be able to do this. However, good intentions do not always make for good legislation. Lets see how this one shapes up.
I have to say that the first time I read the bill, it was difficult to stop my eyes glazing over and I kept thinking of other things I really ought to have been doing elsewhere.
I then read the notes, which clarified things a bit, and went back and read the bill again. It made a bit more sense then.
Here are a few bits and bobs which came to mind.
Its complex with a lot of inter clause references
To me that says that there is going to be a lot of dispute over the detail (consider the tenancy deposit legislation). Which will inevitably make section 21 claims more problematic.
It has to be said that one of the main drivers of the private rented sector (in which an increasing proportion of the population is housed) is the ability for landlords to recover possession of their properties easily after the end of the fixed term (unlike under the preceding Rent Act 1977).
This bill, as drafted, could seriously jeopardise this right.
Some landlords may already be planning on selling their portfolio.
Its more work for the ‘relevant housing authority’
Basically the idea behind the act (as I understand it) is that if a tenant complains to a Local Authority and they serve a ‘relevant notice’ on the landlord, the landlord then can’t use section 21 for six months. (Unless one of the exceptions apply, see below).
However Local Authorities are underfunded, overworked and understaffed. Which means that they will not have spare capacity to go around doing inspections for tenants who are unhappy with the condition of their rented property.
This is probably why section 1(4) provides for situations where, basically, a complaint has been made and the Local Authority has not done the inspection. Or they have done the inspection but have not made their minds up yet what they are going to do about it. Or they have not got around to serving the notice yet.
But this is going to be a bit hard on the landlord – for example if they are trying to evict a nightmare tenant in an HMO, who is making other tenants lives a misery, but are unable to do so because the tenant has made a spurious complaint to the Local Authority which they have not had time to deal with yet.
Or if the tenant is deliberately prolonging things by refusing the landlord access to carry out repairs.
There needs to be a way for good landlords to deal with false claims
Sub section (5) sets out various circumstances where the tenant won’t have a defence, which include the notice being served in error, or the decision being revoked etc.
However I would like to see something to help the genuine landlord whose property is either not in disrepair or who wants to do something about it but the tenant won’t let him in to do it.
Could we not say, for example, that the tenant will be unable to defend if the landlord submits a surveyor’s report saying that the property is without problem?
Or if the tenants have refused access to the landlord’s surveyor and/or workmen to inspect and/or carry out works on more than three consecutive occasions? Or something like that.
There needs to be some mechanism to protect landlords from tenants making things up, to prevent s21 evictions. I don’t think Local Authorities are currently up to the job.
There are some much needed amendments to s21 itself
I was pleased to see that s21(4) is to be amended to do away with the dreaded requirement for the notice to give a date which is the last day of a period of the tenancy. Landlords should be happy with that.
Also the act provides for the Secretary of State to be able to prescribe a form (hooray!), and the time for bringing proceedings after service of a s21 notice is to be capped at 6 months.
Rather than as now, landlords being able to use it years after it was served and after everyone else has forgotten about it.
The effective initial ‘section 21 free period’ is effectively being extended
The draft seems to be saying in s4 that you cannot give a s21 notice during the first four months of a tenancy. Which as the notice is a two month one, means that the earliest date you could start your eviction proceedings would be at the end of six months.
Unlike now when you can grant a one month tenancy, serve a section 21 notice immediately and then issue proceedings during the third month. That way the landlord could get an order for possession to take effect at or shortly after the end of the six months ‘moratorium’ period – during which the Judge cannot make an order.
As it takes between two and six months normally to get an order for possession under s21, this clause is effectively extending the period of time a tenant will be able to stay in a property before he can be evicted under section 21. Landlords take note.
It will be particularly hard, for example, on landlords who agree with their tenant that they will only have a short fixed term (which is allowable) but then find that the tenant changes his mind and decides to stay on.
This is not the end so far as limits on section 21 are concerned …
It also looks as if there are powers to impose other ‘prescribed requirements’ (s5) relating to
- the condition of the property,
- health and safety and
- energy performance.
Which is going to limit further landlords rights to use section 21.
As I said at the start, I am all for preventing landlords from evicting tenants just because they don’t want to carry out essential repairs in their properties. There are some horrific landlords around.
However I am generally not happy about legislation ‘patching’ problems. Unless done carefully, this can create more problems than it solves.
One of the main things which worries me about this bill though, is its reliance on Local Authorities doing inspections and serving notices. At the moment, in some authorities, two or even one person is doing the work formerly done by eight or ten, as a result of budget cuts. They do not have the capacity for extra work.
I think this aspect needs to be seriously reconsidered.
There is also the problem, which has been pointed out elsewhere (e.g. by the RLA) that there is enormous potential here for tenants to play the system by making malicious reports or even damaging the property themselves, in order to defeat the landlords section 21 eviction claim.
Government is rather relying on the private rented sector to provide accommodation for all the people who can’t afford or who don’t want to be an owner occupier. They need to be careful not to destabilise the industry.
What do you think?