Two years ago government caved in to pressure to abolish section 21 as a means of a landlord obtaining possession against a tenant.
Section 21 notices came in 32 years ago, so for a whole generation they have simply been part of the private rental landscape.
Various people have spoken out about the morality of s21 down the years and were always written off as “Looney left” or just plain deranged. Surely a landlord’s rights to vacant possession were more important than basic human morality?
Then in in 2019 the dam unexpectedly burst and suddenly the mad and the weird were suddenly talking accepted sense. The wider public cottoned on to the notion that having your home taken away when you had done nothing wrong, was just plain wrong.
The Queen’s Speech today did little to dispel campaigners from calls to make good the promise, the general thinking being they are going to have a think about it by the Autumn.
Where do Safer Renting sit on the abolition of s21?
Well to be honest, it isn’t much of a problem for us. Remember we deal with the real bottom feeder landlords, the parasites sucking the life out of poorer renters.
S21’s aren’t much of an issue, simply because our usual suspect landlords don’t bother with any form of notice at all, unless you count a crowbar as a legal document.
Don’t get me wrong, we are aware of the social ill of s21 and supportive in principle of it’s abolition but our approach to it is somewhat skewed, simply because we don’t actually see too many of them.
To my mind its important to separate the abolition of s21 from the very notion of no fault eviction in its basic form.
S21 is effectively a legal procedure, a piece of paper and a procedural route to possession. Government could abolish s21 but just recreate it in a different form by re-jigging the surrounding legislation.
The real social ill is No fault eviction itself, its important not to get too caught up on s21 alone.
S21 invokes a procedure that allows a landlord to obtain possession where the tenant has done nothing to warrant losing their home but there is a different legal mechanism that allows a landlord to apply for a possession order, where they are citing specific grounds that must be proven to the court’s satisfaction.
And there are different sets of grounds for eviction depending on the tenancy type.
Protected tenancies, which are tenancies in the private rented sector that began before the 15th January 1989, have around 20 different grounds for eviction.
Council tenants, (Secure tenancies) have a similar set for grounds for possession and there are yet again, another set of grounds for assured tenants BUT it is important to bear in mind that only assured tenants are open to possession where they are not at fault.
There are for instance, generally no mandatory grounds for possession against council tenants.
If a local authority wants a possession order against their tenant, then they not only have to prove the ground to the court’s satisfaction but the court also has the discretion to consider each application on it’s own merit and decide whether taking away a family’s home, is a proportionate response to the thing they are being accused of.
Private tenants dont always have the protection of that discretion and it isn’t always just the s21 route.
There are 8 grounds for eviction of assured tenants that are mandatory, by which I mean that a judge in proceedings has no discretion not to grant a possession order if the landlord proves their case.
For instance, Ground 1, returning owner occupier, allows a landlord to automatically gain possession if they just want to re-occupy (there are caveats on this but I only have so much space)
Ground 5 is an interesting one, that allows a landlord to obtain possession without fault, if the property is to be used for a minister of religion. So the family gets evicted because the parish council wants a new vicar.
S21 is merely one aspect of mandatory/no fault possession.
As I said above, Government can reshuffle the dominoes on the table to recreate a piece of legislation that delivers no fault eviction through different means.
What the focus should be on is the abolition of no fault eviction period, just as is the case for most council tenants.
If we are to take a moral stand, a landlord should never be allowed to gain vacant possession of a property if the renter has not done anything wrong.
Possession should not be relegated to mediation or out of court settlements as is being currently proposed by certain fee charging outfits or even some in the judiciary itself.
Possession should always be subject to the courts and should always be a matter of discretion and proportionality.
S36 of the Administration of Justices Act 1970 gives judges full discretion in possession cases. They use it routinely in mortgage applications and where councils are seeking possession but is denied to them in possession applications made under grounds 1 – 8 for assured tenants.
S21 is merely an administrative and procedural call, we need the entire moral concept of no fault evictions to be abolished right across the board.
Grounds 1 – 8 under Schedule 2 of the Housing At 1988 need to be relegated to the dustbin of history. Nobody should lose their home just at the convenience of someone else.
By Ben Reeve Lewis
