I have always held that as a car driver without any mechanical knowledge or skills, I at least know a handful of things about cars. Where to put the fuel, how to fill up my windscreen washer, hell I even know how to change a wheel…how advanced is that???
But most tenants don’t even know 5 legal rights about renting.
For as long as I have been a TRO, which is 31 years, people have been discussing the best way to empower tenants and the focus has always been on lack of knowledge. Whilst renters could certainly benefit from knowing more about their rights and the obligations of landlords, does this knowledge truly empower them?
I think not.
Standing up for your rights with the wrong kind of landlord can result at best in being labelled a chippy little bugger who wont get a decent reference or at worst, a swift illegal eviction.
Reading posts by landlords on Landlordzone, Property Tribes, Landlord Vision and Property 118, the places where landlords hang out airing views they think nobody outside of their inner circle is reading, increasingly tells me that landlords don’t like tenants who know their rights.
I have long spoken against the notion of increased legal knowledge among tenants as being in any way empowering, which has not always gone down very well amongst my peers.
Unlike landlords, who can gather around the unified flagpole of income and investment, tenants have always been a far more disparate group to reach, divided as they so often are by language, circumstance, political views or the absence of, or even just lacking any sense of themselves as being any part of a collective organism.
Contrary to the doctrine of Coronation Street’s Les Battersby, knowledge is NOT power for renters, in fact in many ways knowledge can be a distinct liability.
S21 has always been the ultimate sanction for landlords.
They can raise the rent on a Statutory Periodic tenancy using a s13 notice and the tenant is legally entitled to apply to the tribunal to limit the rent. The tribunal very rarely do but if they were to do so, the landlord would simply serve s21 and re-let to someone who can afford to pay more.
We are two years on from the time when Theresa May announced the abolition of s21 and slightly less since Johnson announced it as a campaigning promise, so the ultimate sanction is still available to landlords for tenants who have the temerity to stand up for their rights.
Knowledge is not empowering tenants but there is one thing that would do so.
The right for renters to withhold rent in designated circumstances.
A landlord could refuse to carry out repairs, they could assault the tenant, they could cut off their services. All of which are certainly breaches that would bring down a number of penalties but not penalties with any immediate bite, they are fraught with legal difficulties, appeals, tribunal judges being less than firm and magistrates being the chocolate teapot end of housing enforcement.
A tenant’s rights to withhold rent in a pre-determined set of circumstances is a far more direct solution to the kinds of problems that impact upon their lives.
Some time agio I read of a provision in New York, where tenants whose landlords are not fulfilling their repairing obligations, can pay their rent into an Escrow account held by the local version of the county court and only when the landlord has completed the repairs satisfactorily, will the money be released to them.
I read this ages ago and I may be completely wrong but even if this is the case, it still sounds like a damned fine idea.
The possibility of witholding rent just might be the tenant’s nuclear equivalent of s21, a swift, no-nonsense solution to the lack of empowerment without recourse to lengthy, procedurally impotent legal action, where local authority enforcement are so denuded of staff and resources as to be so often of little assistance and legal aid is not available
Safer Renting have produced a set of 13 recommendations that we have published, to inform the Renter’s Reform Bill to really change the experiences of renters at a drill-down legal detail level. Recommendation that examine the loopholes exploited by rogue landlords and agents, the missing tricks that allow them to walk off laughing over their shoulders, the weaknesses in a legal framework so often devised with the notion of a landlord or agent who actually gives a shit about the law but naively wide of the mark when it comes to how the criminals exploit the most vulnerable renters.
A tenant’s right to withhold rent in designated circumstances is to be Safer Renting’s 14th recommendation.
We have lately been getting our collective heads around the notion of “Repudiatory breach of contract” where a landlord has seriously breached the terms of an agreement. There is a similarly narrow version in a tenants ability to unwind a tenancy where they have been encouraged to sign on the dotted line through mis selling or aggressive selling but this is a very limited provision.
Case law is confused and contradictory on the subject but precedents are already there. In Hussein v Mehlman [1992] a renter was allowed out of a tenancy before the end of the fixed term because the landlord had failed to address repairs.
Other cases such as Nynehead Developments Ltd v RH Fibreboard Containers Ltd [1999) cover similar ground in terms of a tenants rights to back out of a contract, all of which could lend some weight to extending the logic to include the withholding of rent for specific breaches of performance.
Early days but we are working on it and hopefully the people drafting the Renters Reform Bill will be open to the suggestion.
by Ben Reeve Lewis
