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Retaliatory evictions: new rules and adequate response

New provisions of the Deregulation Act 2015 (England only) aim at preventing so-called retaliatory evictions by making section 21 notices invalid in case of disrepair.

These new rules, set out in section 33 of the Act, apply to all assured shorthold tenancies (AST) created on or after the 1st October 2015, except statutory periodic ASTs which follow an AST created before that date.

Local authority notices are key

Under the new provisions, in case of disrepair a landlord is prevented from serving a valid section 21 if and only if the local authority has served a relevant notice, which is defined as an improvement notice for category 1 or 2 hazards, or an emergency remedial notice:

  • Under section 33(1), a section 21 notice cannot be validly served for six months after the local authority has served on the landlord a relevant notice. This applies whether the tenant had first reported the issue to the landlord or not.
  • Under section 33(2), a section 21 notice served following a written complaint from the tenant will be invalid if the tenant escalates the complaint to the local authority, which then serves a relevant notice on the landlord. In this case, the local authority’s notice has a retrospective effect: Any section 21 notice is invalidated if given following the tenant’s complaint, before the relevant notice is served.

Complaint and adequate response

Section 33(2) suggests that a landlord has 14 days to give an adequate response to a tenant’s written complaint.

However, in details whether the response is adequate or indeed whether there is a response at all does not seem to make any difference.

Here is section 33(2):

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where—

(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,

(b) the landlord—

  (i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,

  (ii) provided a response to the complaint that was not an adequate response, or

  (iii) gave a section 21 notice in relation to the dwelling-house following the complaint,

(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,

(d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and

(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

Despite mentions of the landlord’s response, (b) suggests that what matters is just whether the landlord serves a section 21 notice following the tenant’s complaint.
If he does and the tenant then escalates the matter to the local authority, which, as a consequence, serves a relevant notice the section 21 notice is invalidated (and no further section 21 notice are permitted for 6 months).

The landlord’s response has no effect, although one might hope that it could contribute to softening the local authority into dealing with the situation without serving a relevant notice

We may also see arguments on the meaning of ‘following’ in (b)(iii): Does it mean ‘after’ or ‘as a result of’?

Two exceptions

The Act provides for two exceptions which allow a valid section 21 despite a relevant notice:

1. It can be shown that the disrepair issue was caused by the tenant,

2. The property is on the market for sale.

Conclusion

These new provisions are not particularly clear.

Although the response to a tenant’s complaint does not seem to have a direct effect, landlords would probably do well to provide an adequate response within the mandated timeframe (14 days) and to liaise with the local authority in order to minimise the risk of a relevant notice being served.

This uncertainty makes it all the more important for landlords avoid creating new tenancies (as far as possible) in order to avoid being suggest to these new rules for the next 3 years (as previously discussed).