"Landlords may be shocked to discover that tenants could potentially successfully fight a claim for possession based on what has until recently been known as the non-fault eviction process"
Landlords are being urged to set up basic procedures to protect themselves against accusations of retaliatory evictions.
Danielle Hughes, a solicitor at Kirwans law firm, said that many landlords are leaving themselves wide open to legal claims of retaliatory eviction and property disrepair by failing to put clear processes in place to deal with tenant issues.
The introduction of laws against retaliatory evictions – in which landlords are accused of evicting a tenant solely because they have made a complaint about the condition of the property – were brought in as part of the Deregulation Act 2015. The laws currently only apply to assured shorthold tenancy agreements (ASTs) entered since October 1, 2015, but will apply to all ASTs from October 1, 2018.
According to Danielle, landlords are now at increased risk of seeing their claims for possession defeated in court as tenants gain a greater understanding of the new retaliation eviction legal defence.
She said: “Landlords may be shocked to discover that tenants could potentially successfully fight a claim for possession based on what has until recently been known as the “non-fault” eviction process.
“This defence can not only invalidate a section 21 Housing Act notice and lead to the judge striking out a claim, but can also prevent a new section 21 notice being served for six months.
“There is a particularly strong chance of this happening in cases where landlords have failed to deal effectively with complaints and have had an improvement notice or an emergency remedial action notice served on them by the local authority.”
According to Danielle, landlords should actively encourage tenants to report any problems with the property to them in writing at the earliest opportunity to avoid the problem escalating to the point where the local authority becomes involved.
“The law sets out that landlords must provide an “adequate response” to complaints within 14 days of receipt,” she said. “The belt and braces approach is to inspect the property regularly and undertake any work required within a reasonable timeframe, depending on the works required.
“Most landlords pride themselves on being responsible, and are keen to be made aware of issues with a property so that they can both protect their asset and continue to provide safe and secure homes for their tenants.
“Keeping properties in good repair is not only preferential, it’s also essential to avoid other legal action being taken, such as housing disrepair claims, a hazard notice being served by the local council, and investigations into a breach of licence conditions, with the latter two carrying risk of criminal sanctions.”
There are cases in which landlords carrying out genuine evictions will be legally protected, including situations where the tenant has caused the disrepair, if the property is genuinely for sale on the open market (not to family, friends or business partners), and if at the date of the section 21 notice, the mortgage lender requires vacant possession to sell the property.
"However," said Danielle, "It goes without saying that the best approach is for landlords to be proactive in managing their property to ensure they’re not accused of a retaliation eviction in the first place.”
Here Danielle sets out her key tips for landlords to protect themselves against allegations of revenge evictions:
1) Be aware of your repair obligations as set out in the Assured Shorthold Tenancy Agreement and under Section 11 of the Landlord & Tenant Act 1985;
2) Make open channels of written communication available so that tenants are able to report any problems;
3) Implement a system whereby you respond to any written complaint within 14 days of receipt. If you will be away, then arrange for someone to monitor this for you. If a letting agent manages the property, ask them about their process for responding to ensure they are doing so in a timely manner, as ultimately the landlord bears the overarching responsibility for repairs and responses;
4) Put in place a schedule for any works to be completed within a reasonable timeframe, depending on the nature of the work needed;
5) Keep records of your responses to the tenants in case the details are ever needed in court;
6) Keep a log of any repair work you have undertaken;
7) Retain any evidence you might have of occasions on which tenants have refused to allow access to the property for inspections or for repair work to be undertaken. This could prove vital.
8) Most importantly, check whether there are any outstanding complaints with the property and address any such issues before service of notice under Section 21.