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Retaliatory eviction - striking out!

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One of the more controversial provisions of the Deregulation Act 2015 that came into force in October 2015 may set a trap for unaware private landlords, and will potentially allow a tenant at least a further six months in the property without the landlord being able to regain possession. 

Section 33 of the Deregulation Act 2015 deals with preventing “retaliatory eviction”. Where a tenant makes a complaint to a landlord in respect of the condition of the tenanted property, and that landlord in response either: 

•    Does not provide an adequate response; or 
•    Serves a section 21 notice on the tenant for possession of the property

then the tenant may complain direct to the local authority. The local authority will investigate the complaint and, if the complaint is upheld, they will serve a notice on the landlord. 

The effect of such a notice is that a) the landlord cannot serve a valid section 21 notice for a period of 6 months from the date of the local authority’s notice; and b) if the landlord has already issued proceedings for possession, relying on a section 21 notice, then those proceedings are liable to be struck out. 

Because landlords will then have to serve a new section 21 notice (which must be of at least two months’ duration) and then will need to take proceedings after that point if the tenant still does not leave, it would not me if, in reality, this provision “buys” the tenant closer to a year in the property following the service of the notice by the local authority. 

I think there are significant issues with this legislation, firstly because some of the terms used are vague and uncertain. For example section 33 makes reference to a complaint about “the condition of the property”. Nowhere does it state that the complaint has to be “significant” or “substantial”. A literal reading of the provision would suggest that any complaint, no matter how trivial, about the condition of the property, will engage section 33.

Section 33 can also operate to make things still more difficult for a landlord. A tenant, for example, does not have to make the complaint in writing where he does not know the landlord’s postal/email address.

Because the legislation is in its infancy, we will have to wait for a number of months before there is any case law that will guide both landlords and tenants for future reference. Until that point, there will be great deal of uncertainty for both tenants and landlords, the difference being that a landlord potentially has a significant deal to lose by it, the tenant a significant deal to gain. 

I should say that, for the time being, section 33 will only affect tenancies granted on or after 1 October 2015. If you are landlord of a property with a tenancy created before that date, then this provision will not affect you yet. However, section 33 will apply to all tenancies from 1 October 2018, including those granted before October 2015 and which may still be in existence, so it is important that landlords do not ignore this legislation completely, because there will come a day, be it now or in 2018, when it will become of vital importance.

Many professional landlords and agents will have a comprehensive system for recording and dealing with tenant complaints; a paper trail to show how the landlord has responded to a tenant’s complaint will, I predict, be of vital importance when there is an inevitable dispute over whether the landlord has complied with their obligations for the court to determine. If not, it would be advisable for landlords and agents to implement one as soon as possible.   

In any event, I think it is likely that section 33 will make the process of taking back possession more costly and time-consuming for landlords than ever before.

For advice please contact our Litigation team.

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