Is there life beyond section 21?
Serving a notice under section 21 of the Housing Act 1988, has been one route for private landlords to seekpossession of their property after the end of a fixed term of an assured shorthold tenancy. Are we now seeing the beginning of the end of section 21?
How have we got here?
On 2 July 2018, the Governmentlaunched an eight-week consultationseeking views on longer tenancies,which proposed a new, three-yeartenancy model. The responsesnumbered just over 8,500, includingresponses from a survey run byShelter. Whilst there was someevidence that tenants felt a degree ofinsecurity in shorter-term tenancies,there was no consensus from tenantresponders over the preferred lengthof tenancies. Landlords, on the otherhand, wanted to maintain the statusquo of the typical six or 12-monthtenancy.
The concerns raised by tenants andothers around short-term tenancies areunderstandable and possibly valid.Frequent moves can impact onchildren’s education, and the costs ofmoving undermine people’s ability tosave up for a deposit.
Additionally, some tenants endurepoor standards and worry that if theyrequest reasonable maintenanceworks, the landlord would simplyserve notice instead of carrying outthe repairs.
Overall the Government recognisesthat mandating a tenancy lengthwould not meet the needs of differenthouseholds and types of landlords.
Instead, the Government hasintroduced what it is calling a‘generational change’ to end ‘no fault’evictions by repealing section 21.
The reaction
Reactions to the news from bothlandlords and organisationsrepresenting landlords have naturallybeen swift and largely negative. Thefears are varied and include thatlandlords will struggle to gainpossession if or when theircircumstances change or if the tenantis causing other problems. Thesemight include breaches of contract,anti-social behaviour etc. In manycircumstances, landlords prefer to usethe ‘no fault’ process as it is lessconfrontational. If landlords no longerhave this option, the only alternativewould be to go through a slow anduncertain court process under section8 of the Housing Act 1988. Currently,this process requires a hearing which,in many cases, may mean the landlordincurs additional costs such as theservices of a solicitor.
How might they make this work?
The consultation response shows thatthe Government understands some ofthe issues and recognises that it willneed to balance giving greatersecurity to tenants against grantinglandlords the ability to regainpossession of the property when theyneed it.
The Government has indicated thatthe section 8 grounds will need to bestrengthened so that landlords cangain possession when they wish to sellor occupy the property themselves,pointing out that existing section 8grounds already exist, for instance forarrears of rent or anti-social behaviouror indeed any non-financial breach ofthe tenancy. The majority of thegrounds though, were written over 30 years ago, and many need a thoroughoverhaul.
In addition, the Government recognisesthat the process for gaining possessionorders through the courts and theenforcement of those orders by thebailiffs requires more resources and/oralternative processes.
In November 2018 the Governmentlaunched another consultation entitled‘Considering the case for a housingcourt’. Presumably by then it alreadyknew that the longer tenancy proposalwas a non-starter. The Government hasnow linked the idea of a dedicatedhousing court to the repeal of section21 within the consultation response. Ahousing court, maybe the First-tierTribunal, would be essential to stop thecourts being completely overwhelmedand to centralise expertise.
What happens next?
As with the Tenant Fee Ban it appearsthat political parties are in agreementover the repealing of section 21 whichmay speed up the process somewhat.They have indicated that their preferredtimescale is the end of 2020 to get thiscompleted. This may be ambitious. Therepealing of section 21 will require anact of Parliament. This will entail aproposal: a bill which will bescrutinised and amended until an Act isagreed and produced.
The alternative processes or newGrounds and additional resources willneed to be in place before section 21can be repealed or the Governmentwould risk damaging the private rentedsector irrevocably.
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