Retaliatory Evictions

From 1 October 2015 1, sections 33 and 34 of the Deregulation Act 2015 will come into force in England. These sections bring into force provisions titled “preventing retaliatory eviction”.

In summary the new rules prevent a section 21 (no fault two months notice) from being served (or render a section 21 invalid) in certain circumstances relating to Housing Health and Safety Rating System (HHSRS) hazards in a property.

Subject to the next paragraph, none of the rules discussed in this article apply to an assured shorthold tenancy granted before 1 October 2015 nor to any statutory periodic tenancy arising on or after 1 October 2015 where the original tenancy was granted before 1 October 2015. Therefore, subject to the next paragraph, these rules only apply to a tenancy granted on or after 1 October 2015 including a renewal granted on or after that date in England.

From 1 October 2018, the rules discussed in this article will apply to ALL assured shorthold tenancies in England including any that were granted before 1 October 2015 (or went statutory periodic).

Introduction to the Housing Health and Safety Rating System

The HHSRS is basically a means by which a local authority may inspect any residential premises (including owner occupied) and identify hazards that might be prejudicial to a persons health or safety (there are 29 hazards in total). Each hazard achieves a score based on the likelihood of harm being caused and how serious that harm might be. A category 1 hazard is the most serious and the local authority must take some action. A category 2 hazard has a lower score and the council may take some action.

The possible courses of action available include:

  • serving an improvement notice seeking works to be carried out within a specified time (the most common course of action by local authorities)
  • issuing a prohibition order on the house or flat (which takes effect 28 days after it is issued)
  • issuing an emergency prohibition order (which takes effect immediately)
  • carry out emergency remedial works (the local authority immediately carry out urgent works and invoices the appropriate person).

This is not a complete analysis of the HHSRS or possible courses of action. Please see our HHSRS series of articles for more detailed information.

Deregulation Act 2015

The new legislation is in essence in two parts. Firstly, a section 21 notice cannot be served within a certain time period after some notice has been served under HHSRS. Secondly, if a tenant asks for works to be completed, a section 21 notice served in retaliation to that request for works may be rendered invalid.

Service Of A Section 21 Notice After A HHSRS Action

Where a relevant HHSRS notice has been issued in relation to a dwelling in England, no section 21 notice may be served in relation to the dwelling-house within six months from the day of service of the HHSRS notice or, if the HHSRS notice has been suspended, within six months from when the suspension ends.

A relevant HHSRS notice is any of-

  • an improvement notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
  • an improvement notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or
  • a notice served under section 40(7) of that Act (emergency remedial action).

When The Six Month Rule Does NOT Apply

The starting point is that once a HHSRS notice has been served, no section 21 notice may be given within six months. This is the case even if any works contained in the HHSRS notice are completed within the given time-scales. However, there are a number of exclusions where, despite the six month prohibition, a section 21 notice may indeed be given at a time of less than six months from the HHSRS notice. These exclusions are-

If the improvement notice was served in error and as a result the whole improvement notice is revoked under section 16 Housing Act 2004, a section 21 notice may be served after the notice has been revoked.

If the landlord asks the local authority to revoke an improvement notice on the grounds it was served in error and the local authority refuse, the landlord can appeal to a tribunal about the refusal. If on appeal the local authority’s decision is reversed (so the notice is revoked), a section 21 notice can be served after the improvement notice is revoked by the tribunal.

If an appeal against the improvement notice on other available grounds (such as works not necessary etc.) is successful at the tribunal and the notice is quashed, a section 21 notice may be served after it has been quashed by the tribunal.

If an appeal is made to the tribunal against the local authority taking emergency remedial action which reverses the notice, a section 21 notice may be served after the reversal by the tribunal 2.

Where a HHSRS notice has been served but the works specified in the notice was caused by the tenant being in breach of “the duty to use the dwelling-house in a tenant-like manner” (or some express term to the same effect), the six month rule does not apply.

This would be a risky defence though because the starting position is that no section 21 can be served within six months from the HHSRS notice. This is even if the works contained in the notice are carried out promptly. To argue that the landlord was entitled to serve a section 21 notice during the six month prohibition period on the grounds that the tenant caused the works would have to be backed up by substantial proof.

Finally, the six month rule does not apply if at the time the section 21 notice is given, the dwelling-house is genuinely on the market for sale. See later for the definition of “genuinely on the market for sale”.

Examples

Example 1

A tenant moves into a property and after 12 months the extractor fan in the bathroom breaks. The tenant contacts the local authority (without first contacting the landlord) and the local authority inspect. The fan is found to be broken and damp and mould is accumulating as a result.

The local authority decide it is a category 2 hazard (the lower of the hazards) and decide to issue an improvement notice on the landlord to fix the fan within 28 days. The notice is served on 28 November.

The landlord may not serve a section 21 notice for six months (at least 29 May using our example), even if the fan is promptly fixed in November.

Example 2

A tenant has been residing for some time and contacts the local authority about damp on a north facing bedroom wall. No contact was made to the landlord first. The council inspect and find a leaking gutter. They issue an improvement notice on 10 January seeking the gutter be fixed within 3 months.

On 17 January (a week after the council served the HHSRS notice) the tenant leaves voluntarily with the consent of the landlord.

The landlord re-lets the property immediately and a new tenant moves in from 18 January.

The landlord is now unable to serve a section 21 notice in relation to this new tenant for 5 months and 3 weeks (6 months after the improvement notice was served from 10 January in this example) because the reference in section 33(1) Deregulation Act is to a section 21 notice “in relation to an assured shorthold tenancy of the dwelling-house”. The reference is not to any specific tenant. This is not likely to have a great effect though because as will be seen in another article soon, changes are being introduced at the same time to prohibit service of a section 21 on all assured shorthold tenancies within the first four months.

Retaliatory Eviction

The second part to the prevention of retaliatory eviction rules relates to a tenant asking the landlord for some works to be completed and the landlord then serves a section 21 notice in retaliation. In order for a section 21 notice to be invalid, there is a strict set of rules that must be followed in a specific order.

Steps

A section 21 notice served in England will be invalid and any possession claim struck out 3 where ALL of the following applies (and in the following order)-

Step 1:4 before the section 21 notice was given, the tenant made a complaint in writing to the landlord (or to the landlord’s agent 5) regarding the condition of the dwelling-house 6.

And

Step 2:7 at the time of the complaint, the landlord

  • did not provide a response to the complaint within 14 days, or
  • provided a response to the complaint that was not an adequate response, or
  • gave a section 21 notice in relation to the dwelling-house following the complaint.

And

Step 3:8 the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,

And

Step 4:9 the relevant local housing authority served a relevant HHSRS notice in relation to the dwelling-house in response to the complaint,

And

Step 5:10 if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

Discussion

It is important to stress that the steps must be followed throughout and if an order for possession is made before step 4 (service of a HHSRS notice by the local authority) even where the section 21 may have been given after a written request for repairs, the notice will nonetheless be held to be valid.

In step 4, a relevant HHSRS notice is the same as defined earlier under the six month prohibition part (improvement notice or emergency remedial action notice).

Where a section 21 has not yet been served and the local authority serve a HHSRS notice (including in step 4), the six month prohibition on serving a section 21 discussed earlier applies.

In step 2, the landlord is required to respond in some way and if does so, in an adequate manner, the steps cease to move to the next and as such any section 21 notice served afterwards would be valid. An adequate response would be-

  • carrying out the works being asked for within 14 days, or
  • if the works cannot be completed within 14 days, the landlord provides in writing, a description of the action that the landlord proposes to take to address the complaint, and sets out a reasonable timescale within which that action will be taken 11. This reply must be in writing and be within 14 days of the tenants complaint.

A complaint by a tenant may refer to not just parts of the dwelling physically occupied by the tenant but also to any common parts. But, only if the landlord has a controlling interest in the common parts in question, and the condition of those common parts is such as to affect the tenant’s enjoyment of the dwelling-house or of any common parts which the tenant is entitled to use 12.

Once possession has been ordered by the court, it must not be set aside on the ground that a relevant HHSRS notice was served after the order for possession was made 13.

When The Retaliatory Eviction Provisions Do NOT Apply

The section 21 notice will always be valid even if all steps have been completed if the HHSRS notice served by the local authority under step 5 solely contains works that have become necessary due to a breach by the tenant of the duty to use the dwelling-house in a tenant-like manner (or an express term of the tenancy to the same effect) 14.

Further, a section 21 notice will be valid despite steps 1 to 5 having been satisfied if the “dwelling-house is genuinely on the market for sale.” (see later for definition of genuinely for sale).

Also, these provisions do not apply where the operation of the relevant HHSRS notice has been suspended 15.

Examples

Example 1

A tenant writes to the landlord about a faulty fan in the bathroom. The landlord fixes the fan on day 21 after the complaint. the following day, the landlord serves a section 21 notice on the tenant.

A possession order is applied for through the court and a hearing is called. On the day of the hearing, the tenant had not previously contacted the local authority, nor has a HHSRS notice been served by the council.

In this example, the section 21 notice is valid and possession will be ordered because steps 3 (contact local authority), 4 (council serve HHSRS notice) and 5 (section 21 notice served after complaint but before HHSRS notice) shown above have not been satisfied so the retaliatory eviction prohibition is not triggered.

Example 2

A tenant writes to the landlord about a loose handrail on the stairs which is promptly fixed (within a day or two).

A month later and without first contacting the landlord, the boiler breaks and the tenant contacts the local authority. The local authority contact the landlord to give 24 hours notice that they are going to inspect about the boiler (which they must do by law 16). On that same day before the inspection, the landlord hand delivers a section 21 notice to the property.

The following day the council inspect and a further two days later serve an improvement notice on the landlord seeking that the boiler be repaired. The landlord promptly repairs the boiler (within a day or two).

Two months later after expiry of the section 21 notice, the landlord applies for a possession order which is defended by the tenant on the basis that they made a written request for repairs and an improvement notice was served.

In this example, the section 21 is nonetheless valid because of a couple of reasons:

(1) After the original complaint about the handrail, there was an adequate response by the landlord – the handrail was fixed within 14 days. As a result, step 2 is not satisfied and all 5 steps must be completed in order for the notice to be invalid.

(2) Further, when the tenant went to the local authority, the complaint was not “ about the same, or substantially the same, subject matter as the complaint to the landlord”. In our example, the complaint to the landlord was about a handrail but the complaint to the local authority was about a boiler. As a result, step 3 was not satisfied.

Example 3

A tenant moves into a property and after six months the roof starts leaking.

The tenant sends the landlord an email asking that the roof be fixed.

After a month the landlord replies to the tenant apologising for the delay as he was in Spain on holiday for the last four weeks. In the landlords reply he confirms the roof would be fixed within 28 days.

Alongside the reply, the landlord also serves a section 21 notice.

The tenant, not happy with the reply, contacts the local authority who, within a week, inspect and issue an improvement notice seeking that the roof be fixed. The landlord is given 6 weeks to repair the roof.

The landlord notices a fatal error by the council in the HHSRS notice and appeals. His appeal is successful and the notice is revoked.

After the notice is revoked and after the roof is fixed, the landlord applies for possession which is defended under the retaliatory eviction provisions.

Despite the HHSRS notice being revoked and the roof being fixed, the section 21 notice is nonetheless invalid and the landlords claim is struck out.

This is primarily because of step 2 and the failure of the landlord to carry out the repair within 14 days or to provide a written response within 14 days. Although the landlord arguably replied adequately (with a description of the works and a reasonable time-frame), the reply needed to be within 14 days.

What’s more, step 2 was further satisfied because the landlord served a section 21 notice following the complaint.

The fact that the HHSRS notice was revoked on appeal is irrelevant because even an invalid HHSRS notice served as part of the steps would render a section 21 invalid. The reduction in time when a section 21 can be served only applies where a section 21 is served after a HHSRS notice and after that HHSRS notice has first been revoked or quashed.

Going through the steps:

Step 1 was satisfied because the tenant wrote a complaint.

Step 2 was satisfied because the landlord (a) failed to respond within 14 days and (b) served a section 21 following the complaint. (Any one of these would have rendered the step satisfied).

Step 3 was satisfied because the tenant complained to the local authority about the same complaint as to the landlord. (Note: there is no time-limit from the written complaint to when the tenant must then go to the local authority).

Step 4 was satisfied because a relevant notice (improvement notice) was served by the local authority (before an order for possession had been obtained).

And finally, step 5 was satisfied because the section 21 notice was not served before the written complaint in step 1 and was served before the HHSRS notice had been served.

Note: had the landlord waited for the HHSRS notice to be served instead of serving the section 21 “following the complaint”, service would have been barred for six months or until the notice had been revoked if sooner so it would not have helped.

Example 4

Six months into a tenancy, the landlord serves a section 21 notice. A week later, the tenant gives the landlord a written request for some repairs which the landlord ignores.

After 14 days, the tenant contacts the local authority about those repairs and then the local authority inspect and issue an improvement notice. The landlord is given six months to complete the works as they were relatively minor.

The landlord commences possession proceedings but has not yet completed any of the repairs because the landlord is going to refurbish the property when the tenant leaves. The tenant defends on the grounds that a written request and improvement notice has been served on the landlord.

The notice is held to be valid. This is because step one has not been satisfied. Step one requires the written complaint to be before the section 21 notice was served but in this example the written complaint was a week later.

Genuinely on the market for sale

Where a property is genuinely for sale at the time the section 21 notice is given, neither the six month prohibition after a HHSRS notice has been served nor the retaliatory eviction rules apply 17.

If a property is genuinely on the market for sale, is not defined in the legislation and it appears to be for the court to decide – each case being considered on it’s own merits. However, what is NOT genuinely for sale is helpfully defined (although not conclusively – see the words “in particular” in section 34(3)).

A dwelling-house is NOT genuinely on the market for sale if, in particular, the landlord intends to sell the landlord’s interest in the dwelling-house to—

  • a person associated with the landlord,
  • a business partner of the landlord,
  • a person associated with a business partner of the landlord, or
  • a business partner of a person associated with the landlord.

A business partner of a person (“P”) is a person who is—

  • a director, secretary or other officer of a company of which P is also a director, secretary or other officer,
  • a director, secretary or other officer of a company in which P has a shareholding or other financial interest,
  • a person who has a shareholding or other financial interest in a company of which P is a director, secretary or other officer,
  • an employee of P,
  • a person by whom P is employed, or
  • a partner of a partnership of which P is also a partner.

To clarify, the legislation is not defining the above as being a conclusive list of what is NOT genuinely for sale. The court may consider a house for sale at £500,000 when three agents have valued the same house as £250,000 to be not genuinely for sale. The crucial word is “genuinely”. Putting a house on the market on the same day as serving a section 21 and then taking it off the market the following day is not likely to be “genuine”.

What’s more, the legislation does not prohibit the sale of a property to a business partner or associate of the landlord – it’s just that the retaliatory eviction rules will continue to apply under both old and new landlord.

Finally, the property must be genuinely on the market at the time the section 21 is served. It is no use to put it on the market say a couple of days before a possession hearing. That will not avoid the retaliatory eviction rules.

  1. Article 11 The Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 ↩︎
  2. These seem unfair penalties where if the notice was served in error or has been revoked for some other reason, why should the landlord have to wait before then serving a section 21 notice? After all, the reversal or revocation of the HHSRS notice will be proof that the landlord never committed any offence from the outset, yet the prohibition of service of the notice is not until after the notice is revoked or reversed. ↩︎
  3. See section 33(2) and (6) ↩︎
  4. Section 33(2)(a) ↩︎
  5. See section 33(12) Deregulation Act 2015 ↩︎
  6. If the tenant does not know the landlord’s postal or email address, the complaint does not need to be in writing (Section 33(4)). If the tenant is unable to contact the landlord by any means after taking reasonable efforts to make contact, this step and the next step are not required (Section 33(5)). ↩︎
  7. Section 33(2)(b) ↩︎
  8. Section 33(c) ↩︎
  9. Section 33(d) ↩︎
  10. Section 33(e) ↩︎
  11. Section 33(3) ↩︎
  12. Section 33(10) and (11) ↩︎
  13. Section 33(7) ↩︎
  14. Section 34(1) ↩︎
  15. Section 33(9) ↩︎
  16. Power of Entry (HHSRS) ↩︎
  17. Section 34(2) ↩︎

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