Retaliatory eviction was a problem for many years, until the government added new anti-retaliatory protection to the statute book. Will the new government measures prevent these types of evictions and how can you avoid falling foul of the new rules? Read on to find out.
What is retaliatory eviction?
Retaliatory eviction occurs when landlords evict their tenants after they’ve requested repair or maintenance works.
What are the new government measures?
The law (which only applies to tenancies created or renewed after 1 October 2015) says that if a tenant makes a complaint, a landlord must give an adequate response within 14 days. An “adequate response” must state what the landlord is going to do to resolve the problem, and how long it will take. If the tenant then complains to the local authority that the problem hasn’t been resolved, the local authority may then serve a notice on the landlord.
If this happens, the landlord cannot serve an eviction notice for 6 months. If the landlord serves the Section 21 notice before the tenant complains (or before the local authority serves a notice upon them), that Section 21 notice is valid.
The interesting thing about the law on retaliatory evictions is that it is the service of the local authority notice on the landlord that triggers the 6 month prohibition on Section 21 notices, and not the landlord’s failure to give an adequate response. The whole anti-retaliatory eviction structure is therefore dependent on the local authority notice and nothing else.
What are the types of local authority notices?
The local authority notice must be one of the following:
- A notice served under section 11 of the Housing Act (improvement notices relating to category 1 hazards).
- A notice served under section 12 of the Housing Act (improvement notices relating to category 2 hazards).
- A notice served under section 40(7) of the Housing Act (emergency remedial action).
If the landlord receives an improvement notice, it means that the problem is serious enough to be regarded as a category 1 or category 2 hazard.
Category 1 hazards are the most serious type of hazard and include things like:
- Exposed wiring or overloaded electrical sockets
- Leaking roof
- Mould on the walls or ceiling
- Rats or other pest or vermin infestation.
The council must take action if its assessment shows that there is category 1 hazard in the tenant’s home. Category 2 hazards are hazards that are less serious; if the council’s assessment shows that there is a category 2 hazard in the tenant’s home, the council has discretion as to whether or not to take action.
It works in theory …
… but in practice, it’s probably a very different story. Do local authorities actually serve notices on landlords? Many commentators argue that they haven’t acted in the past, what with cuts to funding and a reduction in staff; things aren’t likely to change any time soon. If local authorities don’t serve notices on landlords, those landlords can retaliate with impunity. Moreover, even if the local authority does serve a notice on a landlord, that landlord is only prevented from serving a Section 21 for 6 months. It is highly unlikely that a disrepair claim will conclude during that time (unless it is settled), what with the many hurdles parties have to go through, including investigation of the matter by solicitors and surveyors to see if it’s worth pursuing, as well as compliance with the pre-action protocol (involving the tenant sending out a letter of claim). Then if the claim goes ahead, it will need to be filed and issued. By the time all of this has completed, the landlord will be able to serve their section 21 notice. There is also no guarantee that the claim will be paid.
It is important to ensure standards are raised to pave the way for better quality properties, and pressure applied to landlords who are clearly being exploitative, however, there needs to be further guidance on how the rules on retaliatory eviction should be applied. In particular, what happens when the tenant stops paying rent to force the landlord to pay for repairs? It’s very much a chicken and egg scenario here, as the landlord may not even be able to afford the repairs (as the tenant stopped paying rent).
The fact of the matter is that preventing revenge evictions is a complex legal process; they need to be dealt with robustly and effectively. It’ll be interesting to see how the government responds, so as to ensure neither landlord nor tenant can abuse the system.
Watch this space.