Responding To Tenant Complaints And ‘Preventing Retaliatory Eviction’– The New Requirements

From 1st October 2015 the Deregulation Act 2015 has come into force. Various changes have come into force which directly impact any landlord’s ability to recover possession of a property.

What is ‘Retaliatory Eviction’?

Retaliatory eviction is where a tenant raises an issue or item with a landlord regarding poor property conditions and where the landlord then terminates the tenancy and claims possession of the property rather than dealing with that problem.

The argument for preventing retaliatory eviction is that landlords should be prevented from ending a tenancy where the tenant is only raising genuine poor property conditions that the landlord should simply resolve. Although that sounds very noble I’m not sure I agree with that rationale.

My experience is that tenants are frequently legally aided and many are ‘chancing’ disrepair claims knowing that commercially these claims are incredibly unattractive for landlords as they require landlords to incur costs defending them. Even if a landlord ‘wins’ against a legally aided tenant who is pursuing a spurious or minor claim, they will not recover their legal costs. This legislation will do nothing to help landlords, or agents, in that fight.

What is the relevant law?

There are really two key aspects.

Section 33(1) Deregulation Act 2015 applies where a ‘relevant notice’ is served by a local authority relating to the condition of a property. A ‘relevant notice’ will include an improvement notice relating to category 1 hazards served in accordance with section 11 Housing Act 2004; an improvement notice relating to category 2 hazards served in accordance with section 12 Housing Act 2004 or a notice served in accordance with section 40(7) Housing Act 2004 relating to emergency remedial action.

Where any of these notices are served by the local authority a section 21 notice may not be served within six (6) months beginning on the day of service of the relevant notice, or where operation of the relevant notice has been suspended, the day on which that suspension ends.

There will be no restriction on serving a section 21 notice if the relevant notice has been wholly revoked, quashed or the action in the notice has been reversed.

This means that landlords really must pay close attention to section 33(2) of the Deregulation Act 2015 which states that a section 21 notice 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 property;

(b) the landlord;

1. did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given;
2. provided a response to the complaint that was inadequate, or
3. gave a section 21 notice in relation to the property following the complaint.

(c) the tenant made a complaint to the local authority about the same or similar subject matter as the complaint to the landlord;

(d) the local authority served a relevant notice in response to the complaint;

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

For a response to be ‘adequate’ it must provide a description of the action that the landlord proposes to take to address the complaint and set out a reasonable timescale within which that action will be taken.

This second aspect is really a potential killer point for landlords. It means that landlords must reply within 14 days and even then must reply adequately meaning saying how and by when the issue is going to be resolved. If they fail to do so they are putting themselves at risk of being reported to the local authority by a tenant, and any section 21 notice being invalid.

Recommendation

– Landlords need to be alert to the condition of their property and conduct regular inspections detailing any issues;

– Landlord and letting agents need to respond quickly and adequately regarding any complaint received from a tenant;

– Where there is a risk of a complaint or improvement notice being served landlords would be well advised to serve a section 21 notice before any complaint is received in writing.