Safer Renting have a set of 13 recommendations which we would like to see incorporated into the Renter’s Reform Bill. We have already spoken to the MHCLG about them and you can hear myself and Safer Renting caseworker and policy officer Molly Delaney talking about some of them on the HLPA podcast here.
I should say that being concerned as they are with legal and procedural details they aren’t going to particularly excite non specialists. Rather they look mainly at amending single words or passages in existing legislation that close loopholes exploited by landlords to avoid regulations and evade prosecution.
The sorts of loopholes that housing enforcement officers and solicitors work with every day.
Whilst broad brush stroke campaigns are what draw attention to a problem, the actual donkey work that will usher in those changes are about dry, dusty details. Boring as hell to all but law geeks
The Renter’s Reform Bill, despite it’s enticing name, at the end of the day, being a new piece of legislation will, like all other pieces of legislation, consist not of campaign pledges but of sections and sub-sections, paragraphs and references to other legislation.
It wont be concerning itself with what is fair or just. Such matters are for campaigns.
Our recommendations sit in the unexciting zone of detail and come with a certain methodology:
· There are precedents in other recent legislation which mirror the approach and indicate that they are achievable as they have already been done. The logic being, “Well you did it there so why not apply it here?”
· They aren’t, for the most part, so comprehensive that they require an overhaul of centuries old legal principles. Tweaking is one thing, completely re-writing the rule book is quite another task.
Take the abolition of s21 for instance. It’s one thing to have it as a concept but you cant just get rid of it without addressing other regulations that it impacts upon.
I’m not saying it shouldn’t be done, I have been arguing for years about the immorality of no-fault evictions and Safer Renting are part of the Renter’s Reform Coalition, one of the aims of which is to press for it’s abolition but after 32 years of the interweaving of the principle into the fabric of a range of ancillary legislation, the doing of something is not as easy as just saying it should be done and the devil in the boring detail needs to be up front from the outset if it isn’t to just come across as posturing.
So what is recommendation 14?
It is for the introduction of a regulation that allows for a tenant to withhold hold rent in specified circumstances.
Landlord and tenant groups argue incessantly about whether the law is on the tenants side or the landlord’s side.
The reality is, that it depends on the circumstances. Ultimately, since the 15th January 1989 the landlord has always had the nuclear option of s21 in their back pocket, regardless of any complaints a tenant might have but where is the ultimate power of tenants?
Rent and the ability to withhold it.
There is only one piece of legal machinery that allows for a tenant to withold rent. S48 if the Landlord and Tenant Act 1987, more of which below.
The oft quoted case of Lee-Parket v. Izzet (1971) sets out the specific circumstances that allow a tenant to use their rent to pay for repairs but this isn’t the same as a statutory ability to withhold rent and this is the only real power a renter has.
Yes a renter can sue their landlord for disrepair, they can apply for a Rent Repayment Order for failing to license or harassment and illegal eviction, they can cooperate with the local authority to take legal action against their landlord or agent but none of these legislative mechanisms are of any use whatsoever to a renter RIGHT NOW, in dreadful conditions needing a swift and effective solution.
Many remedies rely on legal aid which the renter either doesn’t qualify for or, post LASPO, the nature of the problem is not even governed by legal aid.
This past week we saw how swift and effective the power of football fans withdrawing their support was in beating back corporate takeovers in a matter of days and for centuries trades unions have been founded on the principle that the real power of employees lies in their ability and even just the threat of their ability, to withhold their labour. What renters need is a similarly effective power.
Section 48 of the Landlord and Tenant Act 1987 provides that where a landlord has not provided an address for service of documents, they aren’t entitled to receive any rent until they comply but can easily remedy by providing any address in England or Wales (Not Scotland). It doesn’t have to be their real address
An easy enough provision to get around but our recommendation is to apply that same logic to disrepair issues that are already set out in s11 of the Landlord and Tenant Act 1985.
So in keeping with Safer Renting’s other recommendations, we have an existing legislative framework describing a set of circumstances In which a tenant could withhold rent and the corrective circumstances with which a landlord would have to comply in order to correct it and carry on receiving rent.
We are simply proposing the extension of legislation within a pre-existing framework.
Its already being done . The repairing obligations of the Landlord and Tenant Act 1985 have existed for 36 years, setting out precisely what repairs are covered and sole ability for tenants to withhold rent in specified circumstances has been with us for 34 years. We merely suggest tweaking the regulations that already allow it to happen, increasing renter power.
Once the works have been completed, the landlord is entitled to continue to receive rent. Including any previous rent withheld. As with s48 of the LTA 87, we aren’t proposing a wiping of the rent liability, just the ability to withold it until the landlord complies with their statutory obligations.
The Renter’s Reform Act, when made real, will be full of such details.
The NRLA will of course object straight away, as they do to any proposed changes in legislation that impacts upon their members. I understand that, just as they must understand that they arent the only voice on the block, despite carrying a lot of weight.
As with the logic of trades unions, we are at our most powerful collectively, there are more renters than landlords and the laws are already there, they just need tweaking.
by Ben Reeve Lewis
