A level playing field for tenants?

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We face one of the most pro-landlord governments in history. The Parliamentary Under-Secretary of State for Housing, Eddie Hughes, is a landlord. The Prime Minister is a landlord. One in four Conservative MPs are landlords.

But there will still be some moments of opportunity when the press and politicians are compelled to engage with our proposals for reform. In the autumn, for example, the government will publish its proposals for the abolition of section 21

Tenants’ rights’ advocates have always known that you can’t abolish section 21 without rewriting other parts of our housing law.

1) What will happen to ground 8? The government wants to tighten it to make it easier to evict. But because of Covid and Covid-related rent arrears, the number of people with arrears of more than 8 weeks rent have rocketed. In those circumstances, the arguments for loosening ground 8 and giving tenants more chances to pay off their debts are overwhelming

2) And what about tenancy deposits? One of the considerable virtues of the present section 21 is that it has significantly reduced the long-standing disgrace of landlords taking deposits, holding them at the end of the tenancy, and forcing tenants to endure a bitter and hopeless battle to get their money back.

There has to be some mechanism, of similar force, to the rules currently in the Housing Act 1996 which mean that no section 21 notice can be served if a deposit was left unregistered.

Here’s a modest proposal: why not say that all notices are invalid: no section 8 notices can be given – if a deposit has been taken and not registered?

I also want to talk though about a vision to take us beyond the current crisis.

Plainly, at a certain basic level, you couldn’t ever have a level playing field between landlords and tenants. Or not in the housing market we have now, where in our largest cities it is normal for people to spend half their net income on housing.

Every landlord is renting over something inessential to them: the rent – the profit they can make – on their 2nd, their 3rd home, in some cases their 100th home. While very tenant is negotiating over something essential to them: the roof over their heads without which they cannot live.

The purpose of landlord and tenant is to moderate but not remove that essential inequality.

If it’s right that there is a limit to what the law can deliver, it follows that the sort of changes we should look for aren’t only laws to help tenants lawyers defend this or that case. What we need also are reforms which change the balance of power outside court.

Here are two examples I’ve been considering:

  • Simplification

Every housing lawyer will be familiar with the basic point that, when it comes to possession, a tenant’s rights and a landlord’s obligations depend entirely on what form of tenure applies. In the simplest example: most private landlord evict their tenants pursuant to section 21 of the Housing Act 1988, which means special notices, and the accelerated possession procedure. While most housing associations rely on section 8, meaning different notices, and the ordinary possession procedure.

The problem is the multiplication of tenures. There are different procedures to evict secure tenants, flexible tenants, introductory tenants, demoted tenants, student tenants, asylum seekers, tenants holding a property as a term of their employment, tenants of homeless housing, property guardians, and so on.

This multiplication of tenures means that it is almost impossible for the ordinary, well-informed tenant even with access to such resources as the Shelter website or Nearly Legal to say with any conviction whether – on the receipt of a notice telling them to leave – they have to go. Maybe they leave prematurely; maybe they employ a lawyer. But that will be at a cost to them (unless they are eligible for legal aid) which will be relatively greater to them than it will to the average landlord.

We should be arguing it for a massive simplification of housing law. That process could help tenants as much as any modest tweak to this or housing law.

  • Settlement / advisers

One of the things we have seen under Covid is that formal legal evictions came to an end. But more than 100,000 people were encouraged or compelled out of their homes. If we do abolish section 21, landlords won’t be able to evict at will, and tenants will stay in properties for longer. Where does that leave us in the situation where both sides have accrued rights: on the tenant’s side, disrepair or an unpaid deposit maybe, on the landlord’s side unpaid rent?

Often, we spend out time at court, negotiating very complex orders whose practical effect is that both sides “drop hands”. The disrepair extinguishes the debt; the tenant leaves – perhaps not as fast as the landlord would like.

One thing I’ve been mulling over is what happens in employment law when both sides negotiate a departure (a dismissal) with compensation. The deal isn’t binding unless the employee gets a solicitor or a union to sign it off. Usually the employer pays for that advice.

The compromise is reached before, and instead of litigation.

Should we lobby for something similar in housing law? It would give tenants a right to advice. Not necessarily to sue or counterclaim, but to ensure that everything is done right.

Such a reform would create a space not just for lawyers but also for tenants’ unions and tenants’ associations, social movements that are our natural allies.

To conclude: housing law has changed as much in the past year as it has ever changed. We can’t just take a defensive stance of resisting every change the government proposes. We need to have a vision of our own for housing law.

(If you’re interested in the ideas set out in this piece, I will be speaking at a meeting of the campaign group SHAC on Monday. Link here. You can also buy my book, Jobs and Homes, which was published by Legal Action group this spring and is available here or here).

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