Safer Renting is part of the Renter’s Reform Coalition, calling on government to ensure that the Renter’s Reform Bill really lives up to it’s title. The RRC are not the only organisations throwing their hats into the ring.
This week saw publication by The Lettings Industry Council, the representative body of letting agents, management companies, lettings industry experts etc, on what they would like to see government do in the interests of their members.
Some of the recommendations I wholly agree with but as you would expect there is much that I don’t.
I’ve said all along that you cant just abolish s21 because it is woven into so many areas of law and it has been clear from the outset that government would tweak other parts of the possession procedure to compensate but what the RRC and TLIC view as necessary changes aren’t coming from the same place.
The recent Queen’s Speech briefing notes (p67) makes ominous noises in that direction:-
“Abolishing so-called ‘no fault’ evictions by removing Section 21 of the Housing Act 1988, providing security for tenants in the private rented sector and empowering them to challenge poor practice and unfair rent increases without fear of retaliatory eviction.
Reforming possession grounds for landlords, introducing new and stronger grounds for repeated incidences of rent arrears and reducing notice periods for anti-social behaviour, ensuring that they can regain their property efficiently when needed.”
So I read with interest the TLIC recommendation on the “Stronger grounds” mentioned above.
There isn’t space here to go into everything but I will give a flavour by just examining TLICs recommendations for changing Ground 1 of Schedule 2 to the Housing Act 1988, as a prime example of what we should be paying attention to.
Ground 1 – Is commonly referred to as “Returning owner occupier”, it’s a mandatory ground that allows a Landlord to get possession if they lived in the property before renting and need it again for themselves, their spouse or civil partner.
It is little used in my experience but I know some landlords are looking to it more as an alternative to s21. Bear with me on this as I pick apart what TLIC’s seemingly innocuous recommendations for Ground 1 are, what the legal position is and what this would really mean to tenants in real life terms.
The TLIC recommendations for Ground 1.
“1. Currently the ground only allows for landlords to recover a property for their own use or that of their spouse or civil partner. This should be widened to include immediate members of the household as defined in s258. Housing Act 2004
2. The ground is only effective if notice has been given in advance of the tenancy commencing. This requirement creates a trap for the unwary and should be removed;
3. The ground cannot be used if someone has purchased a property during the tenancy, this limit should be removed to allow for changes in personal circumstances;
4.This ground could be expanded to include situations where the landlord wishes to sell the property. If s21 is to be removed there will need to be some mechanism to recover possession for sale and this requirement fits naturally with the other parts of this ground or ground 2”
In recommendation 1 you can see the aim is to widen the scope, to allow landlords to get mandatory possession where the property is needed by more than just the landlord, spouse or civil partner.. They cite s258 of the Housing Act 2004 but this section does not state “Immediate family” but “Same family”. What it actually says is this. (I have highlighted the relevant bits in bold):-
Same family is defined as
“ (a) those persons are married to or civil partners of, each other or live together as if they were a married couple or civil partners;
But it also goes on to say that members of the same family include “relatives” which are further described as being
“(b) “relative” means parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece or cousin”
The linguistic shimmy in recommendation 1 is on referring to “Same family”, indicating a narrower definition than the actual one in s258. So in practice, if that recommendation is adopted, a landlord could get mandatory possession against a tenant if they simply want an aunt or nephew to move in.
Recommendation 2 – Abolishing the need for a pre-notice to be served at the commencement of the tenancy. Courts actually have the discretion to dispense with this pre-notice requirement but abolishing the need altogether would mean that the courts would not be able to consider matters of hardship in the proceedings. Put bluntly, what this recommendation is saying is “I dont have to tell the tenant I might use this ground and if I do choose to use it, they have to leave”
Point 3 – Recommends doing away with the current restriction on Ground 1 being used by new owners,.
Point 4 – Recommends allowing a landlord to get mandatory possession if they simply want to sell the property and the recommendation even admits it’s s21 through the back door, “If s21 is to be removed there will need to be some mechanism to recover possession for sale”.
So let’s put all 4 of the recommendations together in non legalese and show what they dangerously hint at.
A landlord wont have to put the tenant on notice at the start that they might want the property back in the future. The court would have no discretion over granting possession at all and possession can be granted even if proposed occupation by anyone remotely related to the landlord is given as the reason, also any new landlord can buy a property and immediately evict the tenant in favour of a member of their own family and if a landlord wants to sell the tenant is merely an inconvenience and has to relocate at their own expense..
Proposed changes in law and the plethora of recommendations that all concerned parties are coming up with are fine as broad brush stroke ideas but as always, the devil is in the detail and these 4 recommendations that I’m sure will be very popular with the landlord lobby have the potential to be the s21 reboot that we all need to be alive to.
Mandatory grounds came in all on the same legislation as s21, ground 8 claims, fixed term tenancies and market rents. All part of the same landlord friendly package that had been devised to encourage investment.
I would personally like to see all mandatory grounds become discretionary but in the meantime, It’s really important not to be so fixated on the abolition of s21 that we miss what is being Cuckooed in elsewhere.
By Ben Reeve Lewis