Retaliatory Evictions
The Deregulation Act 2015 introduced new measures intended to prevent "retaliatory evictions" for any assured shorthold tenancy granted on or after 1 October 2015, including a renewal tenancy. From 1 October 2018, the provisions apply to all assured shorthold tenancies.
The legislation is, in essence, in two parts. Firstly, the landlord cannot serve a section 21 notice within a specific time after some notice has been served under the Housing Health and Safety Rating System ('HHSRS'). Secondly, if a tenant asks for works to be completed, a section 21 notice served in retaliation to that request may be rendered invalid.
Service of a Section 21 Notice After HHSRS Action
Where a local authority has issued a relevant 'HHSRS notice', the landlord may not serve a section 21 notice concerning the dwelling-house within six months from the day of service of the HHSRS notice.
A relevant 'HHSRS notice' is-
- an improvement notice, or
- an emergency remedial action notice.
When the Six Month Rule Does NOT Apply
The starting point is that once an HHSRS notice has been served, the landlord may give no section 21 notice within six months. Even if any works contained in the HHSRS notice are completed within the given timescales, this is the case. However, there are some exclusions where, despite the six-month prohibition, a section 21 notice may nevertheless be given at a time less than six months from the HHSRS notice. These exclusions are-
if the local authority served the improvement notice in error and, as a result, is revoked. In this case, the landlord may serve section 21 after the notice has been cancelled.
suppose the notice is appealed to the First-tier Tribunal, and as a result, the notice is quashed or revoked. In that case, the landlord may serve a section 21 notice after the tribunal's decision.
If an HHSRS notice has been served, but the works specified in the notice were caused by the tenant being in breach of "the duty to use the dwelling-house in a tenant-like manner" (or some express term to the same effect), the six-month rule does not apply.
This would be a risky defence, though, because the starting position is that no section 21 can be served within six months from the HHSRS notice. To argue that the landlord was entitled to do a section 21 notice during the six month prohibition period because the tenant caused the works would have to be backed up by substantial proof.
Finally, the six-month rule does not apply if the dwelling-house is genuinely on the market for sale at the time the section 21 notice is given (for which see later).
Example
A tenant moves into a property, and after 12 months, the extractor fan in the bathroom breaks. The tenant contacts the local authority (without first contacting the landlord), and the local authority inspects. The fan is found to be broken, damp, and mould is accumulating.
The local authority decides it is a category two hazard (the lower of the hazards) and issues an improvement notice to the landlord to fix the fan within 28 days. The notice is served on 28 November.
Even if the fan is promptly fixed in November, the landlord may not serve a section 21 notice for six months (at least 29 May using our example).
Service of Notice After Request for Repair
The second part of the prevention of retaliatory eviction rules relates to a tenant asking the landlord for some works to be completed. The landlord then serves a section 21 notice in retaliation. For a section 21 notice to be invalid, a strict set of rules must be followed in a specific order.
The Steps
A section 21 notice served in England will be invalid, and any possession claim struck out where ALL of the following applies (and in the following order)-
Step 1: before the landlord gave the section 21 notice, the tenant made a complaint in writing to the landlord (or to the landlord's agent) regarding the condition of the dwelling-house.
And
Step 2: at the time of the complaint, the landlord did not respond within 14 days, provided a response to the complaint that was not an adequate response, or gave a section 21 notice concerning the dwelling-house following the complaint.
And
Step 3: the tenant then complained to the relevant local housing authority about the same or substantially the same subject matter as the complaint to the landlord.
And
Step 4: the local authority served a relevant HHSRS notice concerning the dwelling-house in response to the complaint.
And
Step 5: if the landlord did not give the section 21 notice before the tenant complained to the local housing authority, they gave it before the service of the relevant notice.
Discussion
It is important to stress that the steps must be followed. Suppose an order for possession is made before step 4 (service of an HHSRS notice by the local authority) even where section 21 may have been given after a written request for repairs. In that case, the notice will nonetheless be held to be valid.
In step 4, a relevant HHSRS notice is the same as defined earlier under the six-month prohibition (improvement notice or emergency remedial action notice).
Where a section 21 has not yet been served, and the local authority serves an HHSRS notice (including in step 4), the six-month prohibition on doing a section 21 discussed earlier applies.
In step 2, the landlord is required to respond in some way, and if they do, in an adequate manner, the steps cease to move forward, and as such, any section 21 notice served afterwards would be valid. An adequate response would be-
carrying out the works being asked for within 14 days, or
suppose the works cannot be completed within 14 days. In that case, the landlord describes the action that the landlord proposes to take to address the complaint and sets out a reasonable timescale within which they will take that action. This reply must be in writing and be within 14 days of the tenant's complaint.
A complaint by a tenant may refer to not just parts of the dwelling physically occupied by the tenant but also to any common parts. But, only if the landlord has a controlling interest in the common parts in question, and the condition of those common parts is to affect the tenant's enjoyment of the dwelling-house or any common parts that the tenant is entitled to use.
Once the court has ordered possession, it must not be set aside on the ground that a relevant HHSRS notice was served after the order for possession was made.
When the Retaliatory Eviction Provisions Do NOT Apply
The section 21 notice will always be valid even if all steps have been completed where the HHSRS notice served by the local authority under step 5 solely contains works that have become necessary due to a breach by the tenant of the duty to use the dwelling-house in a tenant-like manner.
Further, a section 21 notice will be valid despite steps 1 to 5 being satisfied if the "dwelling-house is genuinely on the market for sale." (see later for the definition of genuinely for sale).
Examples
Example 1 A tenant writes to the landlord about a faulty fan in the bathroom. The landlord fixes the fan on day 21 after the complaint. The following day, the landlord serves a section 21 notice on the tenant.
A possession order is applied for through the court, and a hearing is called. On the day of the hearing, the tenant had not previously contacted the local authority, nor had the council served an HHSRS notice.
In this example, the section 21 notice is valid, and the court will order possession because steps 3 (contact local authority), 4 (council serve HHSRS notice), and 5 (section 21 notice served after complaint but before HHSRS notice) have not been satisfied.
Example 2: A tenant writes to the landlord about a loose handrail which is promptly fixed. A month later, the boiler breaks, and the tenant contacts the local authority without first contacting the landlord. The local authority contacts the landlord to give 24 hours' notice that they will inspect the boiler (which they must do by law). On that day before the inspection, the landlord's hand delivers a section 21 notice to the property.
The following day, the council inspected and served an improvement notice on the landlord an additional two days later, seeking that the boiler is repaired. The landlord promptly fixes the boiler.
Two months later, after the expiry of the section 21 notice, the landlord applies for a possession order that the tenant defends because they made a written request for repairs, and an improvement notice was served.
In this example, the section 21 is nonetheless valid because of a couple of reasons:
(1) After the original complaint about the handrail, there was an adequate response by the landlord – the handrail was fixed within 14 days. As a result, step 2 is not satisfied, and all five steps must be completed for the notice to be invalid.
(2) Further, when the tenant went to the local authority, the complaint was not "about the same or substantially the same, subject matter as the complaint to the landlord". In our example, the complaint to the landlord was about a handrail, but the complaint to the local authority was about a boiler. As a result, step 3 was not satisfied.
Example 3 A tenant moves into a property, and after six months, the roof starts leaking. The tenant sends the landlord an email asking that the roof be fixed.
After a month, the landlord replied to the tenant apologising for the delay as he had been on holiday for the last four weeks. The landlord's reply confirmed they would fix the roof within 28 days. Alongside the response, the landlord also serves a section 21 notice.
The tenant, not happy with the reply, contacts the local authority who inspects and issues an improvement notice within a week, seeking that the roof is fixed. The landlord is given six weeks to repair the roof.
After the roof is fixed, the landlord applies for possession that is defended under the retaliatory eviction provisions.
The section 21 notice will be held invalid, and the court will strike out the landlord's claim because of step 2 and the failure of the landlord to carry out the repair within 14 days or to provide a written response within 14 days. Although the landlord arguably replied adequately (with a description of the works and a reasonable time frame), the reply needed to be within 14 days.
Furthermore, step 2 was further satisfied because the landlord served a section 21 notice following the complaint.
Going through the steps:
Step 1 was satisfied because the tenant wrote a complaint.
Step 2 was satisfied because the landlord (a) failed to respond within 14 days and (b) served a section 21 following the complaint. (Any one of these would have rendered the step satisfied).
Step 3 was satisfied because the tenant complained to the local authority about the same complaint as the landlord. (Note: there is no time limit from the written complaint to when the tenant must go to the local authority).
Step 4 was satisfied because a relevant notice (improvement notice) was served by the local authority (before an order for possession had been obtained).
And finally, step 5 was satisfied because the section 21 notice was not served before the written complaint in step 1 and was served before the HHSRS notice had been served.
Genuinely On The Market For Sale
Where a property is genuinely for sale when the section 21 notice is given, neither the six-month prohibition after an HHSRS notice has been served, nor the retaliatory rules apply.
If a property is genuinely on the market for sale, is not defined in the legislation, and it appears to be for the court to decide – each case is considered on its own merits. However, what is NOT genuinely for sale is helpfully defined (although not conclusively).
A dwelling-house is NOT genuinely on the market for sale if, in particular, the landlord intends to sell the landlord's interest in the dwelling-house to—
- a person associated with the landlord,
- a business partner of the landlord,
- a person associated with a business partner of the landlord, or
- a business partner of a person associated with the landlord.
A business partner and persons associated are also further defined in the legislation.
The legislation does not define the above as a definitive list of what is NOT genuinely for sale. The court may consider a house for sale at £500,000 when three agents have valued the same place as £250,000 to be not genuinely for sale. The critical word is "genuinely". Putting a house on the market on the same day as serving a section 21 and then taking it off the market the following day is not likely to be "genuine".
What's more, the legislation does not prohibit the sale of a property to a business partner or associate of the landlord – it's just that the retaliatory eviction rules will continue to apply under both old and new landlords.
Finally, the property must be genuinely on the market when section 21 is served. It is no use to put it on the market a couple of days before a possession hearing, which will not avoid the retaliatory eviction rules.