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The End of Section 21 – Possession claims based on ‘bad tenant’ grounds

June 6, 2019 by Tessa Shepperson

the End of Section 21In the last post, I looked at what we could do to improve the eviction procedure where a tenant is in arrears of rent.

That is probably the most common reason why landlords want to evict. However, landlords will also want to recover possession on other ‘bad tenant’ related grounds.

For example:

  • When the condition of the property or its furniture is deteriorating
  • Where the tenant behaves in a (seriously) anti-social manner
  • Where the tenant has been guilty of illegal activities at the property – such as running a brothel, dealing in drugs or some other criminal activity
  • Where the tenant has failed to allow the landlord access to carry out inspections or get the annual gas inspection (and in due course the electrical inspection) done.

These are all circumstances where now a landlord would use section 21 as although there are grounds which would allow these under section 8, they are all discretionary grounds. So bringing a claim based on these would be prohibitively expensive.

The most difficult reforms of all

Eviction procedures based on ‘bad tenant’ grounds are the hardest to reform – as if tenants dispute the grounds (as they should have a legal right to do) this will normally necessitate a contested hearing which will be time-consuming and expensive for the landlord to bring.

This is unfair on the landlord if the tenant actually is guilty of any of these, particularly as it is highly unlikely that they will ever get their costs from the tenant.  Most landlords don’t even try.

In fact, the fear of being unable to evict for these reasons may well discourage many landlords from renting property at all.

If the eviction process is to be amended to give landlords anything like the protection they have against bad tenants that they do with section 21, then there will have to be fairly serious changes.

Here are some suggestions:

Failure to allow reasonable landlord access

The law places various obligations on landlords – for example, to carry out gas safety inspections once a year and to keep the property fit for human habitation. However, if the tenant fails to allow access, it is impossible for the landlord to comply.

Failure to allow access for gas safety inspections is particularly serious as a gas explosion could endanger the whole property and neighbouring properties.

Failure by a tenant to allow the landlord access could also be a sign of illegal activity such as the conversion of the property to a cannabis farm.

I would suggest that landlords should have a legal right to enter and inspect the property at least once every six months and that where a tenant fails to allow this, or fails to respond to requests for access, it should form the basis of a mandatory ground for possession.

The landlord would have to prove that at least three written requests have been served on the tenant at the property over a four week period (the final letter giving a statutory warning) with no response from the tenant. If the tenant then fails to respond to the court proceedings, the landlord should be entitled to a 14-day possession order.

But, you may say, what if the tenant is on holiday?  The answer is that tenants should be under an obligation to let their landlords know if they will be away from the property for more than, say, 28 days. This may be required for insurance purposes anyway.

Property and furniture deterioration

The ability of a landlord to use this type of ground in any new regime would have to be dependent on detailed property inventories and ‘schedules of condition’ being prepared at the start of the tenancy. So landlords will need to be a lot more careful about this.

One reason why landlords need a right of access (as discussed above) is to check the condition of the property.

Maybe the rules could be amended to show a presumption in favour of the landlord if he is able to file evidence to show, from independent accredited third parties such as inventory clerks, letting agents or a surveyor, that the property has been inspected and found to have seriously deteriorated since the start of the tenancy and (maybe) that there is a genuine danger that this will continue.

Criminal convictions and police complaints

If a tenant has been found guilty of a criminal offence which involves behaviour at the property (eg running a brothel) then this should entitle the landlord to a possession order as of right with no discretion for the Judge to entertain any defence.

Similar rules could apply if more than three separate complaints are made to the Police by separate individuals – particularly if the complaints are from other tenants in an HMO where tenants rent individual rooms in a shared house.

There should also be a process for landlords to recover possession quickly and easily if tenants have been given a custodial sentence of more than, say, six months.

Private landlords are not social services

These suggestions are for private landlords.  Different rules should apply for social housing.

My view has always been that you should not expect private individuals – landlords – to house ‘difficult’ and anti-social tenants against their will. This should be the job of the social housing sector. This is partly what it is there FOR.

This and previous governments have elected to sell off much of the social housing stock leaving little accommodation available for those in need – and seem to expect private landlords to step in to fill the void. However, the fact that the government has acted in this short-sighted way does not justify forcing private landlords to house tenants who fail to behave in a reasonable manner.

Proper records

There should also be a proper searchable database of possession orders giving the names of the tenants and the address of the property which landlords can search as part of their checks on prospective new tenants.

And in conclusion

In the past section 21 has been used for these situations in a non-confrontational way. As section 21 is ‘no fault’ landlords have not been forced to antagonise anti-social tenants by having to spell out why they are being evicted.

I predict that if section 21 can no longer be used there will be a lot more unpleasantness – and I for one am thankful that I no longer do this work!

It is also going be considerably more difficult for persons evicted on the bases set out above to obtain accommodation in the future – few private landlords will accept them and even if they are in a ‘priority need’ category Local Authorities will be able to refuse to help on the basis that they are ‘voluntarily homeless’. As their homelessness is as a result of their own behaviour.

As with my previous post, the ideas set out here are just suggestions.  But it is this sort of protection private landlords will want if they are to continue to rent their property without the protection of no-fault eviction under section 21.

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Filed Under: Analysis Tagged With: Bad Tenant, Eviction

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IMPORTANT: Please check the date of the post above - remember, if it is an old post, the law may have changed since it was written.

You should always get independent legal advice before taking any action.

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About Tessa Shepperson

Tessa is a specialist landlord & tenant solicitor and the creator of this site! She is a director of Landlord Law Services which now hosts Landlord Law and other services for landlords and property professionals.

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Comments

  1. Ian says

    June 6, 2019 at 9:56 PM

    I am fearful that it will not be possible to rent a HMO on a per room bases without S21, as there can be so many reasons for a tenant not being compactable with the running of a “happy” HMO that will never be possible to prove to a judge. The other tenants are more lickly to just leave then to agree to give evidence.

  2. Peter Jackson says

    June 9, 2019 at 5:40 PM

    I don’t thinks complaints alone should be enough for a mandatory eviction. Some evidence should be needed. Given how common smartphones are that shouldn’t be difficult to get,

The End of s21 – What we know so far:

Free e courseOn 25 April 2019 we asked David Smith – solicitor and Director of Policy at the Residential Landlords Association, to present a webinar and answer questions.

You will find the recording below (or see here if you want the powerpoint):

https://youtu.be/qZaIQNyHNxo

Index of posts on the End of Section 21

  • A Quick Look at Section 21 History
  • Why removing section 21 could result in lower standards
  • Why it may be bad for tenants seeking to be rehoused
  • The Concept of the Overton Window
  • The Evil Rule
  • Our Survey Results
  • A private tenants take
  • Re-thinking our values
  • What about purchased fixed terms?
  • Possession claims based on rent
  • Possession claims based on ‘bad tenant’ grounds
  • Possession claims where the tenant is not at fault
  • Do we need a private rented sector?
  • Changing the law

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