Ben Reeve Lewis reports
The 1st anniversary of the introduction of the Deregulation Acct 2015 has just passed and I thought it would be a good time to report back on the impact of it as seen from the frontline.
On the 11th of November, I am speaking at the housing advice conference of Zacchaeus 2000, a charity with Jan Luba as its patron. One of my topics is this very theme, so I have been researching around and looking at my own files and I thought I would share the message.
To recap briefly the Dereg Act ushered in several key requirements that weren’t there before, that have a big impact on possession proceedings for landlords.
The Deregulation Act Requirements for Section 21
As you will all know the most common route to possession is through the service of a notice under section 21 of the Housing Act 1988. Section 21 can be invalidated by not having a licence where needed, if deposit protection rules have not been complied with, if the landlord applies for possession before the 2 months is up or if the notice period is less than 2 months (although in some circumstances it may need to be longer).
The Dereg Act added to this mix (for tenancies which started or were renewed on or after 1 October 2015):
- Failure to serve a gas safe certificate.
- Failure to provide an EPC where applicable
- Failure to serve the ‘How to rent’ booklet.
- Prevention of retaliatory eviction
The notice also cannot be served during the first 4 months of the original tenancy and only last for 6 months until it has to be served again.
In addition, for the first time there is a specific form (6A) that has to be used which contains information on all of the above, so the tenant will know what their rights are.
Given the 4 month moratorium everyone knew from the start that the earliest we would start to see possession claims brought under the new rules would be February 2016, which is 8 months back now.
‘Safer Renting’ – a new initiative
In April 2016 I started helping build a project called ‘Safer Renting’, a new funded initiative sitting under Cambridge House Law Centre which provides housing advice and advocacy services for tenants working in partnership with different local authorities in London.
This involves going out with the council enforcement teams to find tenants with problem landlords and taking direct referrals from them where they fall across tenants in difficulty when we aren’t around.
We aren’t legal aid dependant and we take on cases even if the tenant doesn’t have recourse to public funds.
Essentially what we are doing is plugging back in all the services that have been largely cut because of budgetary constraints but from outside of the council’s themselves, so we are both independent and embedded at the same time.
We are currently working with 3 London authorities with another about to sign up and two more in the pipeline, so I am in the unusual position of seeing the problems being encountered by tenants in several boroughs at the same time.
Not a single valid notice …
I have been involved in more than 50 cases so far this year and I can report that I have not seen a single, valid section 21 notice to date.
I’m not saying “9 out of 10” and I’m not saying “Most of them”, I’m saying “NOT A SINGLE ONE”.
I have not been presented with a Form 6A yet either, even though I’ve seen countless tenants who moved in under the auspices of the Dereg Act.
More worryingly is that I have been involved in several court cases to get an already granted possession order set aside because the s21 was invalid, which indicates that the validity of s21s is getting missed in the rubber stamping process.
How even the Judges get it wrong – and refuse to believe it
Earlier in the year I was defending a possession action at the last minute, so didn’t have time to construct a skeleton argument. The basis of the defence was that the property in question was an unlicensed HMO which meant that the S21 was invalid for that reason. Not even a Dereg Act defence but an issue in force for several years now.
The judge flatly refused to believe that there was a law prohibiting service of an s21 where there is no licence in place.
That is, I have to say, an isolated incident, most DJs aren’t so willfully ignorant when presented with a valid challenge, even if possession has already been granted due to an oversight. You just have to get in front of them and make the case, which is what we do.
It’s becoming a bit like shooting fish in a barrel and reminds me of the early days of the Housing Act 1988 when you needed a section 20 notice to create an AST. For many years, landlords simply didn’t know about them, so defending possession actions was easy-peasy, even dully repetitive.
How landlords lose out
So what is going on? Why are so many landlords not complying with the rules of service under the Dereg Act?
Are they as wilfully ignorant as my judge that day or is it, as with the old s20 notices, that landlords still just don’t know?
The websites of the NLA, the RLA, Landlord Law Blog have been running features on the Act for well over a year, so there is no excuse for not knowing.
All that is happening is that landlords are leaving themselves open to soundly defended possession claims and even having their possession orders set aside when challenged.
A huge number of people facing eviction go to the council for advice and if the council don’t have a housing advice team, or Safer Renting plugged in, then they do have a homelessness prevention team who are all trained to spot defective notices and do what their job says on the tin “prevent homelessness”.
The ball is in your court.