The “Renters Reform Bill” was introduced in the Queen’s Speech in December 2019. The purposes of the Bill are to “Introduce a package of reforms to deliver a fairer and more effective rental market.”
The main elements of the bill are:
1. Abolishing the use of ‘no fault’ evictions by removing section 21 of the
Housing Act 1988 and reforming the grounds for possession.
2. Giving landlords more rights to gain possession of their property through the courts where there is a legitimate need for them to do so by reforming current legislation. In addition to this the government will also work to improve the court process for landlords to make it quicker and easier for them to get their property back sooner.
3. Introducing a new lifetime deposit so that tenants don’t need to save for a new deposit every time they move house.
4. Alongside these, we will continue to develop and implement measures to
wider access to and expand the scope of the database of rogue landlords and property agents. Giving greater powers to drive improvements in standards, and empowering tenants to make an informed choice about who they rent from.
In this note I want to look at the first element, the abolition of “no fault” tenant evictions.
This bill, if, as and when it becomes law will only apply to tenant evictions in England. Housing policy is devolved in Wales, Scotland and Northern Ireland. We will look at Welsh legislation in another note. In this note, we are just looking at eviction notices in England.
Currently, a landlord and tenant can agree any fixed term they like for their assured shorthold tenancy. The law however will imply a minimum fixed term of 6 months; there are additional formalities if the parties want a fixed term of more than 3 years.
Tenancies can be week to week, month to month, quarter to quarter or year to year. Monthly tenancies are the most common.
Tenancies for 6 or 12 months make up most assured shorthold tenancies. In brief, both parties are committed to the fixed period. The tenancy can’t be ended during this period simply by either party giving notice. At the end of the fixed period the parties can choose to have another fixed term for whatever period suits them. Alternatively, the parties can leave the tenancy running month to month (or whatever the appropriate period is). A month to month (or quarter to quarter etc.) tenancy is called a periodic tenancy.
During the periodic phase of a tenancy, either party can end the tenancy. The tenant must give one months notice and the landlord must give two months notice. The landlord’s notice is the s. 21 notice referred to in the Queen’s speech that the government propose to do away with. What’s proposed is that whilst the tenant can still end a periodic tenancy with a months notice, the landlord will have no right to end the tenancy at all, unless he has a reason.
There are other ways to end a tenancy both during and after a fixed term; for example, where there is a serious breach of the tenancy. The most common tenancy breaches are serious rent arrears or anti-social behaviour.
A s. 8 eviction notice is used where the tenant is at fault or where there are certain other reasons to evict. Reasons to evict without fault include for example the landlord’s mortgage company wishing to re-possess or the landlord wanting to move back into the property. A s. 8 notice must rely on the grounds for eviction set out in Schedule 2 of the Housing Act 1988. Some grounds are mandatory, which means that if the court finds that the facts relating to the ground for possession are proven, the court has very limited discretion about whether or on what terms to make a possession order. Some grounds are discretionary, which means that even if the relevant facts are proven the court still has a wide discretion and need not make a possession order at all unless the court considers it reasonable to do so. Notice periods where grounds are relied on in a s. 8 notice range from zero to 2 months.
So, in summary, it appears that the Government’s proposal is that both parties will remain committed during the fixed period, save that the landlord can serve notice to evict for reason (not necessarily fault). After the fixed period, the tenant may give a months notice whenever they choose. The landlord may still only give notice if there is fault or a reason to evict.
In Scotland, the landlord’s right to terminate a tenancy was abolished in 2017. However, where the landlord wishes, for example, to sell the property, or refurbish the property the Scottish legislation includes these with the fault grounds, so notice can be given in these circumstances. It is likely that the English legislation will do something similar.
Those in favour of the proposed legislation refer to the abolition of “no fault evictions” and claim that the proposals will give tenants greater security because they won’t be evicted through no fault of their own. The problem with this position is that it is simply untrue.
If a landlord carries out an annual inspection and discovers that the property is in tip top condition and gleaming like a new pin, and the garden looks like an entry for the Royal Horticultural Show, and the neighbours think that the tenants are lovely people, then how likely is it that the landlord is going to go home and think to herself, “…you know, they are super tenants, and the rent is always paid on the dot, but just for fun, I think I’m going evict them”?
There is an endless supply of tenants who won’t take care of the property or won’t pay the rent or whose behaviour is a nightmare for their landlords and neighbours. Tenants who will cost the landlord an absolute fortune, not to mention the stress. Decent tenants are precious.
So, if we accept that decent tenants won’t be evicted for fault, how else might they be evicted? Well, for example, if the landlord needs to sell the property, or the landlord’s mortgage company repossess, or there needs to be major works carried out at the property. Almost certainly, these reasons will be grounds for eviction under the proposed new legislation. So, what’s the difference? This whole proposal is simply like re-arranging the same deck chairs.
But what about the landlord who wants to evict because the tenants have had the temerity to complain about serious disrepair in the property? The so called “revenge eviction.” Well, there is legislation in place already to prevent revenge evictions. The proposed legislation is unlikely to make much difference to revenge evictions. In our firm’s experience, revenge evictions are not particularly common in reality.
The only difference will be that landlords will be forced to take a less certain road to eviction in some circumstances. For example, this firm recently served a s 21 notice on behalf of a landlord who wished to evict a tenant who had racially abused his agents. Now, in the absence of s. 21, this situation might be resolved with a s. 8 notice on the anti-social behaviour ground. However, anti-social behaviour a discretionary ground which may well, depending on the evidence, end in failure, or the award of a remedy less than a straight eviction. The landlord will be much more reluctant attempt to evict such a tenant if there is no s. 21 notice procedure. The same could be said of any tenant behaviour that hasn’t resulted in an arrest for a serious offence. That’s surely a bad thing.
What about the problem tenants who, for example, won’t permit access for a gas safety check, or urgent repairs? Tenants who persistently agree an appointment for a builder or engineer then don’t permit access, incurring a wasted call out fee that the landlord has no chance of recovering from the tenant. Of course, there can be good reason why an appointment can’t be kept, but landlords shouldn’t be stuck with the considerable cost and stress of dealing with tenants do this sort of thing deliberately and persistently.
It’s not hard to think of other examples of behaviour that a tenant’s landlord or neighbours shouldn’t have to put up with, that a landlord will not be able to do much about in the absence of s. 21. It may take longer to evict using s. 21, but it’s often a much more predictable process.
The only thing these proposals will do is encourage poor behaviour that will cause misery, expense and stress to certain tenant’s landlords and neighbours. Decent tenants will have no more security than they do now.