Ministers delivered a new bombshell to the private rented sector yesterday with guidance explaining that tenants will be able to stave off eviction by complaining about repair issues without having to tell the landlord or agent of the problem.
The could instead go straight to the local authority, leaving the landlord or agent in the dark as to any complaint and giving them no opportunity to address the problem.
If the local authority decides to take up the grievance, the tenant cannot be served with a Section 21 notice for six months – and that could be the first that the agent or landlord knows of the repair issue.
The apparently flawed new guidance on so-called retaliatory evictions was last night described by one lettings expert as “ludicrous”.
He said the guidance issued yesterday contradicts the law itself.
The footnote to the new guidance says: “Where the local authority has served an improvement notice or notice of emergency remedial action, the tenant is protected from eviction for six months from the date of service of that notice, regardless of whether they raise the issue with the landlord first.”
However, according to the legislation, the emphasis is on tenants raising repair issues first with the landlord or agent, who must then give a timely response.
Only if there is no response, or an inadequate one, can the tenant then go to the local authority, which might then serve a notice.
Rajeev Nayyar, director of Fixflo – which specialises in repairs reporting – said he had had to read the footnote several times over before he could believe what he was seeing.
He said: “If the tenant does not have to tell the landlord or agent of a repair issue, how are they expected to remedy a problem they know nothing about?”
He described the new guidance as incorrect, “with the potential to lead tenants, landlords and agents, with severe consequences”.
He said the guidance bore all the hallmarks of having been rushed through.
He went on: “The provisions are premised on the fact that a landlord should not serve a Section 21 notice in retaliation for a tenant requesting a repair.
“As such, the notification of a repair request by the tenant to their landlord is both conceptually and factually a necessary part of any Section 21 process that could be considered retaliatory.
“The guidance states that if the local authority has served an enforcement notice or emergency remedial action notice then a tenant will be provided with protection from eviction for six months from the date of notice irrespective of whether they have first raised the issue with their landlord.
“This conflicts with the legislation, other sections of the guidance and common sense.
“If followed, it has the potential to mislead tenants as to their rights, and agents and landlords as to the necessary steps to better protect their position in light of the change in law.”
The footnote is footnote 9 on page 9 here
Comments (24)
Pretty sure I read somewhere that councils also have the option of charging landlords (up to £1000 I think) for carrying out these HHSRS assessments.
Yes, you are right that councils can charge a reasonable fee to recover the cost of serving a formal notice under the HHSRS. There is no set limit although from my experience the charge is often is around £300. These arrangements have been in place since 2006.
Time for letting only agents to open up sales departments in readiness. 2018 will see more below energy requirement properties likely to come up for resale. Tis changing times and that legislation is going to keep on coming.
Key is to be geared up ready for bad agents and bad landlords to **** up and want out.
Budget agents who offer cheap routes to portals and little else, could be big casulties to fines and closures. Shame 🙂
The sort of landlord/agent that will very likely get caught up in this scenario are the very same that are likely to be rogue in the first place; I can therefore see why tenants might prefer to go straight to the local authority.
As long as the tenant receives a professional service then there should be no problems.
Peter, I think your comment is very naïve. You should meet some of our tenants…..!
I can only cite my experience, of which I have a lot of.
Peter – Is that cited experience as an agent, a tenant, or something else?
Numerous years as an Agent.
Thanks for clarifying.
The legislation is quite clear that a section 21 notice of seeking possession cannot be served within six months of a ‘relevant notice’ being served by the council i.e. An improvement notice or emergency remedial action notice under the Housing Act 2004.
In practice, this is extremely unlikely to happen without the landlord having any knowledge of the tenant’s complaint. The council must first inspect the property and they are required to give both the owner and tenants at least 24 hours notice of the inspection.
After that, they must carry out a full HHSRS assessment and will only then take action for serious hazards. In practice, many councils contact the landlord informally and ask them to remedy any faults. An informal intervention like this by the council would not prevent a section 21 notice being served.
I think one worry is that because of this legislation councils may stop asking informally first.
I agree there will be more pressure on councils to take this more formal approach, although undertaking a full HHSRS assessment and drafting the legal notice is a time consuming process at a time when council resources are extremely stretched due to budget cuts.
But Rogue Councils like Croydon will be able to afford it from their £27,000,000 pounds they raise from borough wide licensing!
This made me read the legislation again, and I am afraid that the government guidance is correct.
The restriction on section 21 notices for 6 months is only dependent on the council having served an improvement notice and nothing else.
The problem with council enforcement notices is that you end up with a raft of Category 2 improvements that are not necessarily required. It’s a nightmare when you’ve got Victorian houses and they start imposing best practice from building regs in the last 20 years.
I spoke to a Council Environment Health officer who confirmed that they would act if they received a notice and they are then obliged to issue degrees bringing houses up to today’s standards.
He admitted that 90% of houses in my area don’t comply. I suggested that I will give him the local electoral roll and state that i want to report all in breach…
My tenant had complained of rising damp on the second floor of the house… It was a tumble dryer, not vented in their bedroom causing the mould. Despite this, I was given £4k of works to do to bring a perfectly good house up to today’s building regs standards.
And you can bet that every housing centre, advice bureau, charity centre etc will be working the repairs loophole.
We can all thank Shelter for this.
I guess the next question raised is how many local authorities have the funding to deal with these procedures but typical of the current Government to not introduce properly considered legislation and rush it through as an add on, to pander to Shelter.
You are right. This is exactly what the legislation says.
Adrian
But this is ridiculous! The whole thing, not just this section. Say you have a tenant with rent issues, always late, never pays in full and has no intention of clearing the arrears. If there is a large issue that needs some thought and planning (all windows replacing as they are draughty for example) and the LL/Agent is getting quotes and trying to sort finance, the tenant can go whining to the Council, and is ‘protected’ for 6 months??
What had they been drinking when this load of sh*te occurred to them?
If the tenant has arrears, you would evict via a Section 8 notice. If the tenant is 2 months in arrears at the time of service and the court hearing, then possession is a mandatory ground.
But tenants are not stupid and would pay sufficient before the court hearing to prevent eviction. A better course of action might be to issue for debt recovery in the small claims court at the start of each debt so sue them once every month for debt under breach of contract. Just an idea!
Obviously if they were in 2months then we would, but the courts/councils etc in this area are so short-staffed and overworked, is actually faster to serve a S8 and S21 at the same time, then go for possession if they don’t leave when the S21 ends as it can take 3 months to get possession from a S8, and that’s if they don’t pay enough to go under the 2months and void the whole thing.
And lets not mention that the Council is actually telling tenants who have been served with a S21 to stay in the property until the Court sends Bailiffs round!
Councils have dedicated officers trying to find defects in landlords paperwork ( and sometimes lie!). Councils are not your friend. If you have to go for possession try to get it transferred to the High Court as High Court Enforcement Officers can take possession on the day – its a matter of playing the councils at their own game.
Actually footnote 9 on page 10. This footnote also is in contradiction of the flow diagram on page 11. Guess this is all part of the Governments cut-backs by employing less professional staff in producing and checking its publications. Of course actual legislation will over-ride any substandard guidance.
It is however indicative of errors that occur in rushing through legislation and highlights the apparent questionable competence of those introducing such legislation.
All this new legislation is without doubt a smoke screen to deflect away from Government the fact they have allowed mass immigration without the provision of housing necessary to accommodate the increased population. When people are desperate you end up with beds in sheds and mattresses under the stairs provided by those who are opportunistic and have no regard for the law. The tenants who take such property should of course live on the streets as required by Government to prevent criminal landlords existing.
I would like to meet the people that come out with these fantastic ideas and then place them in the real world.
They are trying their best to kill the industry.