Revenge evictions

Landlord and tenant specialist, Jacqui Swann, discusses how a landlord and a tenant can protect themselves from revenge evictions.

What is a revenge eviction?

This is also known as retaliatory eviction and applies to Assured Shorthold Tenancies. It is where a landlord serves a Section 21 notice (under the Housing Act 1988) on a tenant to bring the tenancy to an end in response to a written complaint by the tenant about the condition of the property and the need for legitimate repairs. Section 21 is a no fault based notice that does not require a landlord to give a reason for requiring possession.

What are the current laws to prevent revenge evictions?

Section 33 of the Deregulation Act 2015 provides that a Section 21 Notice may not be served on a tenant for 6 months in the following circumstances:

Where a tenant has made a written complaint to the landlord about genuine disrepair such as a serious water leak or non-functioning heating particularly in cold weather, the landlord does not respond to the tenant adequately in 14 days by carrying out the repairs or putting in writing their proposals for the repairs in a reasonable time, the tenant then approaches the Environmental Health department of the Local Authority who inspect the property and verify the issues and then serve an Improvement Notice or Emergency Remedial Action Notice on the landlord. The 6-month delay in the landlord’s ability to serve a Section 21 notice begins on the date the Local Authority serves the notice on the landlord. The landlord must carry out the repairs specified by the Environmental Health department by the deadline given.

If no notice has been served on the landlord before they give a Section 21 Notice to the tenant but one is subsequently served, the court will not make a possession order based on that notice.

If the landlord fails to comply with an Improvement Notice, either the tenant or the Local Authority can apply to the First Tier Tribunal (Property Chamber) for a Rent Repayment Order requiring the landlord to repay rent paid during the period of non-compliance (up to a maximum of 12 months).

How can a tenant protect themselves from such an eviction?

If the landlord fails to respond to written complaints about the condition of the property, the tenant should approach the local Environmental Health department after the 14 days has elapsed so that they can inspect and serve a notice on the landlord if appropriate. However, if the repairs are carried out and the Local Authority Notice withdrawn, the landlord can then serve a Section 21 Notice on the tenant and as long as they have an HMO licence if required and complied with their other obligations such as securing the deposit in a tenancy deposit scheme and giving the tenant the prescribed information within 30 days, provided gas safety certificates (before the tenancy started and within each 12 months thereafter), an Energy Performance Certificate free of charge (with a rating of at least an E or an exemption) and a How to Rent Guide to the tenant. If the landlord has not complied with any of the above and serves a Section 21 Notice, the tenant can challenge the validity of the notice and if a failure is found on the part of the landlord, this may provide a complete defence for the tenant to a possession claim based on that notice.

How can a landlord protect themselves from problem tenants?

Landlords should ensure that they carry out thorough referencing checks before granting the tenancy and inspect the property regularly during the tenancy, keeping on top of any repairing issues that they note or are reported to them and have all statutory inspections carried out by qualified professionals (gas and electricity). If the tenant is not looking after the property in a tenant-like manner, the landlord should remind them of their obligation to do so and specify particular issues and ask them to remedy them (if caused by the tenant’s misuse). If the tenant’s misuse constitutes a breach of the tenancy, then a Section 8 Notice under the Housing Act 1988 may be served on the tenant even during the fixed term as long as there is a provision in the tenancy agreement for this. There are mandatory and discretionary grounds on which the notice may be based and these are set out in Schedule 2 of the Housing Act 1988. It is important that the tenancy agreement clearly sets out the obligations of the parties so that specific clauses can be referred to.

What grounds are there for evictions?

Schedule 2 of the Housing Act 1988 sets out various grounds on which a landlord may seek possession of their property. The most common mandatory grounds (where the court must make a possession order if it is satisfied the grounds are met) are: Ground 8 where there are at least 2 months of rent arrears at the service of the Section 8 Notice and at the date of the court hearing (if the matter proceeds to issuing a claim) and Ground 7A where the tenant has been convicted of a serious offence (anti-social behaviour) and meets one of a number of conditions set out. The threshold for this is high and you will note that a conviction for the offence which must be committed in or in the proximity of the property or against the landlord or an agent of the landlord is required.

Some of the discretionary grounds (where the court may grant possession so it is up to the court’s discretion based on the evidence) are: 10 and 11 in relation to unpaid rent where the arrears do not satisfy ground 8 above but there are some arrears or the tenant has consistently been late paying rent. Ground 12 where there are other breaches of the tenancy, ground 13 where the condition of the property or common parts has deteriorated due to the neglect and/or actions of the tenant or other occupier of the property and ground 14 where the tenant or guest is guilty of conduct causing a nuisance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or to the landlord or employee of the landlord or if the tenant has been convicted of using the property for illegal or immoral purposes.

A combination of the above may be cited in a Section 8 Notice, particularly where Ground 8 is relied on, this should be backed up by Grounds 10 and 11 in case the tenant makes a payment before the hearing which brings the arrears to within 2 months.

For more information on renting and letting properties contact Jacqui Swann on 01935 846254 or email jacqui.swann@battens.co.uk