The Tenancies (Reform) Bill which proposed amongst other things retaliatory evictions was defeated in Parliament on 28 November 2014.

However, today (4 December 2014), parts of that Bill have been added to the Deregulation Bill which is the same Bill where amendments relating to Superstrike are being proposed. This Bill has Government approval so rather worryingly this could be in before the election!

Not all parts of the Tenancies (Reform) Bill have been moved across and the Deregulation Bill currently only contains the provisions relating to retaliatory evictions which we detail below.

As Shelter point out, it is possible that further amendments and additions could be made early next year.

The proposed provisions below apply to England only.

Retaliatory Evictions

It is proposed that there be a new section 21A and 21B added after section 21 Housing Act 1988.

These new sections would provide that a section 21 notice would be invalid if before the notice was given the tenant had made a complaint about repairs to a local authority and a notice has been served by the local authority on the landlord in relation to that complaint requiring works to be completed. 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.

The other worrying part is that it would be a defence even if the local authority hadn’t got round to serving notice and they were still deciding whether to inspect, decided to inspect but not got round to it, conducted an inspection but not yet decided on action or had decided to serve notice but not got round to serving notice.

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[1] 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. Have in mind that even if an improvement notice is served, there has not necessarily been any breach of contract or law at that time until the improvement notice has expired without the works being carried out.

In our view, a better way would be to first require the tenant to request whatever work from a landlord in writing. If there is no reply, a reply is unsatisfactory, or works have not been carried out, within 14 days, a request to the local authority must be made. Only after an actual physical improvement notice has been then served after this full process should a section 21 notice be held to be invalid if served within 6 months after the notice from the local authority. If there is some emergency in the property for example a dangerous power socket which has imminent death, there are still ample provisions under the Housing Health and Safety Rating System (HHSRS) to deal with this as an emergency and within the 14 day period we suggest. After all, the landlord might just carry out the works upon notice being given!

We fully appreciate there is no correlation between section 11 repairs and the inability to serve a section 21 notice in the Bill because it all relates to the HHSRS which is different. Still, it must surely be only right and fair that a tenant has at least asked a landlord in writing to do the work and only after a refusal restrict the ability to serve a section 21 for 6 months in retaliation for asking?

The Bill proposes that a section 21 notice would nonetheless be valid if the works required to be completed in the notice served by the local authority were as a result of the tenant not acting in a tenant-like manner or a breach of some express term in the tenancy. The section 21 would also be valid if the complaint is “totally without merit”. As too if the property was genuinely on the market for sale.

The crucial problem with all of these almost impossible questions to answer about whether something has merit or not is that it turns a section 21 into a potentially discretionary notice rather than mandatory. The whole reason we are not back in the Rent Act 1977 days of poor quality property and low rental supply is because of the ability to serve a section 21 notice without restriction. If that is lost as this Bill essentially proposes, we WILL go back to those days.

What’s not been moved across from Tenancies (Reform) Bill

Not all the proposals that were defeated in the Tenancies (Reform) Bill have been added at this time. At the time of writing, the following previous proposals are NOT contained in the Deregulation Bill:

  • Removal of “last day of a period of the tenancy”.
  • A six month “use it or loose it” provision.
  • Allow regulations to be made to restrict the ability to serve a section 21 where prescribed requirements were not met such as condition, health and safety or energy performance.
  • A proposed prescribed form for a section 21 notice.
  • Apportionment of rent.

However, as mentioned above, there is a long way to go with this Bill and so further amendments or additions are likely.

Condition of allowing Bill

For the reasons outlined earlier, in it’s current form we fail to see how this bill meets the condition set by Ministers that:

the Bill only targets bad landlords and cannot be used by tenants to frustrate legitimate evictions.

  1. O’Brien v Robinson [1973] A.C. 912 – “The landlord’s obligation in relation to property in the possession of the tenant is not an undertaking to prevent them ever getting out of repair during the continuance of the tenancy; it is an undertaking to do work of repair on the premises from time to time as and when they have become out of repair. Thus the landlord is not liable for breach of covenant as soon as the premises are in fact out of repair. Until the landlord has notice of the disrepair no breach arises; nor does any breach arise thereafter if the landlord then carries out the necessary work of repair with reasonable expedition.”  ↩