Preventing Retaliatory Evictions
Tenants in England are protected from eviction in the case that they have recently raised a legitimate complaint about the condition of their home.
Tenants should be able to report an issue to their landlord and even involve their Local Authority to resolve a repair issue without the fear of being evicted. Measures introduced in October 2015 prevent landlords from evicting a tenant through the Section 21 ‘no fault’ procedure in retaliation to a complaint about the properties state of repair. The legislation aims to encourage landlords to maintain their properties to a high standard whilst protecting tenants from unfair eviction.
The rules against ‘retaliatory’ or ‘revenge eviction’ apply to all Assured Shorthold Tenancies in England and are specified in the Housing and Development section of the Deregulation Act 2015. This applies to complaints made about any part of the property that a tenant has the right to use, indoors or outdoors, privately or communally.
For the tenant
To benefit from these rules, the tenant must have used the property in a tenant like manner. This means taking good care of the property by undertaking minor maintenance issues, such as unblocking a sink or turning off the water if they are away in the winter. Tenants are also responsible for repairing any damage caused by themselves, their families or their guests.
Tenants should report any complaint in writing. However, if the tenant doesn’t know their landlord/agents postal or email address, the complaint may also be verbal. It is the landlord or agents responsibility to make sure the tenant knows how to contact them. The tenant should record what they have reported, the response received, and any subsequent actions.
After the tenant has attempted to find a resolution directly with the landlord, but the landlord has not responded within 14 days or offered an adequate solution, the tenant can report the issue to the Local Authority Environmental Health Department.
Depending on the Local Authority’s assessment after inspecting the property, the landlord may not be able to use a Section 21 eviction notice for six months. If the Local Authority serves an Improvement Notice or carries out emergency remedial action themselves, the landlord cannot evict the tenant for six months from the date of that notice. This is regardless of whether the tenant raised the issue with the landlord first.
On the other hand, if the council take no action or only issue a hazard awareness notice, the landlord may continue with a Section 21 procedure.
If the tenant has already received a Section 21 notice, it will generally become invalid if all of the following apply:
- The tenant received it after writing to the landlord about needed repairs or poor conditions.
- The landlord failed to respond adequately to the complaint within 14 days.
- The tenant then complained to the Local Authority about the problem.
- The Local Authority served an improvement notice or emergency remedial action notice on the landlord.
For the landlord
It is necessary to provide an adequate response to a tenant’s complaint in writing within 14 days, providing a description of the proposed action to remedy the complaint and the time scale in which works will be carried out.
If a landlord has served the Section 21 Notice before a complaint arises, the notice will be valid and can be relied upon in court.
If the landlord has responded adequately within 14 days and completed necessary repair work in a timely manner, a Section 21 notice will be unaffected.
If the tenant has reported to the Local Authority and the Local Authority doesn’t issue a Relevant Notice, a Section 21 notice will also be unaffected.
Suppose the Local Authority does issue a Relevant Notice. In that case, the landlord may not serve a Section 21 Notice for six months from the date of that notice. Thus, any failure to deal with complaints and repairs could become very costly.
A Relevant Notice is either an Improvement Notice (Category 1 or Category 2 health and safety hazard) or an Emergency Remedial Action Notice. The local authority will determine the category of risk depending on factors specific to the case. A Category 1 hazard generally represents an urgent health or safety threat. In contrast, a Category 2 hazard means a less serious threat.
Protection for Landlords
In certain circumstances, the tenant won’t be protected by the new rules, and the landlord may claim possession through Section 21 despite the recent complaint. These exceptions apply:
- If the tenant failed to use the property in a tenant like manner.
- The property’s poor condition is due to a breach of the tenant’s responsibilities in the tenancy agreement.
- The property is genuinely on the market for sale at the time the Section 21 Notice is served.
- If the landlord is a private registered provider of social housing.
- If the property was mortgaged before the tenancy started, and the mortgage lender now wishes to exercise their power of sale and requires the property to be vacant.
For the property to be genuinely on the market, the landlord must intend to sell the property to an independent third party and not to a family member or business associate.
It is the landlord or agents responsibility to make sure the tenant knows how to contact them. Landlords and agents should also keep records of what’s been reported and any subsequent actions. Agents are obliged by the Property Ombudsmen Code of Conduct to keep records of their relationship with tenants and landlords for at least six years.
Conclusion
Landlords must remain prepared to tackle maintenance issues as they arise and be available and responsive in communicating with tenants. Evicting tenants rather than deal with a matter only postpones the problem, while the scale of the situation only becomes worse for the landlord once the Local Authority has become involved.
For more information, read the Government guidance notes here:
Retaliatory Eviction and the Deregulation Act 2015: guidance note – GOV.UK (www.gov.uk)
