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Retaliatory Evictions - A new problem for landlords

29 Sep 2015

We have previously covered in detail some of the key changes brought about by the Deregulation Act 2015 (“DA”) in relation to Section 21 Notices for Assured Shorthold Tenancies (“ASTs”). In this article, we consider the new concept of ‘retaliatory evictions’, which are set to cause further problems for landlords wanting to recover possession of properties quickly.

Section 33 of the DA provides that, in relation to new ASTs or replacement tenancies from 1 October, a Section 21 notice is invalid where:

  • The tenant has made a written complaint to the landlord regarding the condition of the property;
  • The landlord either did not provide an adequate response within 14 days or serves a Section 21 notice after the complaint;
  • The tenant has complained to the local authority who then serve a relevant enforcement notice in relation to the complaint.

These provisions will not initially apply to statutory periodic tenancies where the fixed term expired prior to 1 October 2015, however the provisions will apply to all ASTs from 1 October 2018. The provisions do not apply where a landlord is a private registered provider of social housing.

An ‘adequate response’ will undoubtedly cause some debate and what the landlord considers adequate may not necessarily be an adequate response for the tenant. The DA provides little guidance on this, save that an ‘adequate response’ is one in writing which:

  1. provides a description of the action that the landlord proposes to take to address the complaint; and
  2. sets out a reasonable timescale within which that action will be taken.

Clearly, much will turn on the tenant's perception of the severity of the condition of the dwelling, and there is every possibility that the landlord and the tenant will disagree about:

  • the cause of the condition that brought the complaint;
  • the extent of the disrepair;
  • the appropriate course of action; and
  • the timescale for carrying out works.

For example, would the response be considered adequate if the landlord simply replies and states that he will not take any action to address the complaint?

The DA does provide some exceptions where a Section 21 Notice may still be validly served even if there is an outstanding complaint relating to disrepair. These exceptions include where:

  • The condition of the property has been caused by the tenant;
  • The property is genuinely up for sale at the time of the service of the Section 21 Notice;
  • Where a mortgagee is entitled to exercise a power of sale and the mortgagee requires possession of the property for the purpose of sale.

Again, the key and likely to be most frequently used exception here causes even more scope for debate as to whether or not the condition of the property has been caused by the tenant. For example, disrepair complaints relating to condensation and damp always give rise to arguments as to the cause and responsibility, and expert evidence will often be required. This is likely to lead to yet further litigation and increased cost.

The nature of the right to possession under Section 21 is to give the landlord a non-fault based ground for possession and, certainly where the accelerated procedure is used, ought to provide a swift, cost effective solution for a landlord who needs to recover possession of a property. Given that a landlord is likely to be in breach of its contractual and statutory duties where a property is genuinely in disrepair and an eviction does not affect the tenant’s right to seek damages from the landlord for the disrepair, it is hard to see how these provisions are appropriate or necessary. We anticipate a significant increase in the number of hearings being listed as a result of these restrictions, which could potentially allow a well-versed tenant to extend the possession process by months, if not years, by claiming disrepair. Ultimately, even if the landlord is vindicated there will be little prospect of recovering any unpaid rent or potentially significant court costs.

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