Deregulation Bill update.

Retaliatory evictions

In December 2014, provisions to prevent retaliatory evictions were inserted into the Deregulation Bill which is the same bill being used to address some of the problems created by the tenancy deposit Superstrike case. This was despite those same proposals being defeated in Parliament only a short time before.

The first proposals on retaliatory eviction were somewhat of a mess and seemed to us particularly unfair. New measures have just been announced which seem to start to get closer to addressing some (but not all) concerns. The following proposals only apply to England

In our previous article outlining the retaliatory eviction provisions as then drafted we said:

It is bizarre that throughout this whole process there is no requirement to contact the landlord first? If a landlord has not been told about the defect (or could not reasonably have known) then there is no breach of the obligation to repair. Even then, there is still no breach if the works are carried out with reasonable expedition. It seems a strange situation to me that despite a landlord not even being in any breach of any law or contract, the landlord is potentially nonetheless restricted from serving a section 21…

And earlier in that article we also commented:

… What is worrying about this is that it includes a hazard awareness notice which it’s contents can never require a landlord to carry out the works contained in the notice under the Housing Act 2004 yet, it would be an absolute defence to a section 21.

In these most recent proposed provisions, these two concerns appear to have been addressed. The new proposed legislation provides that a section 21 in England would be invalid where –

(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,

(b) the landlord—

(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,

(ii) provided a response to the complaint that was not an adequate response, or

(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,

(c) 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,

(d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and

(e) 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.

A relevant notice (to be served by the local authority) means an improvement notice under category 1 or 2 hazards or a notice in relation to emergency remedial action. A hazard awareness notice is NOT a notice that would affect a section 21 in these current proposals.

In it’s current suggested form, now a landlord is given an opportunity (basically, get the repair done within 14 days) before it interferes with the service of a section 21 notice.

If this version survives, then a section 21 notice will only be invalid if ALL of the following applies:

• the tenant complains in writing to the landlord about the condition of dwelling-house
• landlord does NOT provide an adequate response within 14 days or landlord serves a section 21 notice following the complaint
• tenant then makes a complaint to local authority about same condition referred above
• local authority serves a relevant notice and a section 21 was given after the tenants complaint but before a relevant notice was served by the local authority.

If a relevant notice is served by the local authority, no section 21 notice can be served for six months after the notice (or six months after a suspension ends)

To clarify, for the notice to be invalid all those steps are required. However, there are still some clarification needed in our view.

Firstly, subsection (2)(b)(iii) provides that following a written complaint, one of the factors that renders a section 21 invalid is if a section 21 is served “following the complaint”. How long after is “following the complaint”? If a tenant asks for a boiler to be repaired (in writing) which I then repair – then , a week later I decide to serve a section 21, I have presumably still served notice following the complaint?

Fair enough, we still need the tenant to go to the local authority and then the authority to serve a relevant notice for that section 21 notice I’ve just served to be invalid. However, that leads to the next problem.

Although the tenant must make a complaint to the local authority about the same or substantially the same issue as was contained in the written complaint to the landlord, if a relevant notice is served by the local authority that need not be about the same issue. It can be a notice requiring any works found in the dwelling-house. This seems a little unfair.

To give an example.

Tenant complains in writing about a boiler which is fixed within 7 days. One year later I serve a section 21 notice (which is wholly unrelated to the complaint but is nonetheless following the complaint). Although we’ve had nothing in wiring, tenant goes to local authority claiming boiler isn’t heating as good as it used to (purely as an attempt to delay the section 21 notice). Local authority attend property, find boiler working perfectly (because I fixed it a year ago) but finds the bathroom extractor isn’t working. All the local authority have to now do is serve an improvement notice regarding the extractor fan (which is highly probable) and my section 21 notice is presumably invalid (unless I have missed something).

This must surely contradict the primary condition of any such legislation:

Ministers gave their backing in principle to a Private Member’s Bill to stop the small minority of rogue landlords who, rather than meet their legal duty to keep their properties at a reasonable standard and remove health and safety hazards, instead evict tenants simply for asking for essential repairs to be made – on the condition that the Bill only targets bad landlords and cannot be used by tenants to frustrate legitimate evictions.

The cure is relatively straightforward by making the relevant notice served by the local authority contain action required to remedy the same or substantially issue as in the original complaint to the landlord (even if the notice includes other repairs). That would fix this problem. Also, I think some sort of time limit where everything must be started again would be useful. Maybe the tenant must make the complaint to the local authority within 6 months of the complaint to the landlord as a suggestion.

Exceptions

If any repair complained of is as a result of the tenant being in breach of the duty to use the dwelling-house in a tenant like manner, the suggested provisions will not apply (there’s a year long argument costing courts and landlords vast amounts of money).

It is also proposed that the suggested provisions will not apply if the house is genuinely on the market for sale. The dwelling is NOT genuinely for sale if the landlord intends to sell 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.

Other proposed amendments in the Deregulation Bill

Last day of a period

It is proposed that section 21(4)(a) be amended to remove the requirement for such a notice to expire after the last day of a period of the tenancy.

Time limits on serving a section 21

It is proposed that a section 21 notice may not be given until at least four months from when the original tenancy began. It seems though that a section 21 could be served promptly upon a replacement tenancy being granted (assuming the original tenancy was for 4 months or longer).  This I suppose is necessary to make the retaliatory eviction process work otherwise everybody would avoid that by serving during the first few days of the original tenancy.

It is further proposed that proceedings may not be commenced after six months from service of the notice (or in certain cases not after four months from expiry of the notice) – a use it or loose it provision is therefore being proposed.

Prescribed form

There are provisions allowing regulations to prescribe the form and contents of a section 21 notice.

Compliance with legal requirements

There are suggested provisions which would restrict the use of a section 21 notice if certain legal requirements had not been complied with which relate to –

• the condition of dwelling-houses or their common parts,
• the health and safety of occupiers of dwelling-houses, or
• the energy performance of dwelling-houses

These proposals would need secondary legislation to be brought in so the Bill is just laying down the core elements to allow further legislation to be created.

Prescribed information

There are suggested provisions which would require (after secondary legislation) a landlord to provide prescribed information in relation to the tenancy a little like the current deposit prescribed information.

Apportionment of rent

Finally, there are suggested provisions that if a landlord has served a section 21 notice, the tenancy ends mid way through a period of the tenancy and the tenant has paid rent in advance for that period, the landlord must refund any days overpaid.

Application

It is proposed that none of the proposals relating to retaliatory eviction or repayment of rent will apply to a tenancy granted before they become law except any that are in existence after three years.