Landlords are being urged to set up basic procedures to protect themselves against accusations of retaliatory evictions as UK laws covering the issues are due to be expanded next year.
According to Danielle Hughes, a solicitor at Kirwans law firm, 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.
Hughes explained that while the laws currently only apply to assured shorthold tenancy agreements (ASTs) entered since 01 October 2015, they will apply to all ASTs from 01 October 2018.
She said it means that 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.
‘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,’ Hughes pointed out.
‘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,’ she added.
She also explained that 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. 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,’ said Hughes.
‘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,’ she added.
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, 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,’ Hughes concluded.
Landlords are advised to be aware of their repair obligations as set out in the Assured Shorthold Tenancy Agreement and under Section 11 of the Landlord & Tenant Act 1985 and to make open channels of written communication available so that tenants are able to report any problems.
It is also suggested that they implement a system whereby they respond to any written complaint within 14 days of receipt and if they are away they should arrange for someone to monitor the situation. If a letting agent manages the property the landlord should make sure their process for responding allow them to do so in a timely manner, as ultimately the landlord bears the overarching responsibility for repairs and responses.
Landlords should put in place a schedule for any works to be completed within a reasonable timeframe, depending on the nature of the work needed, keep records of their responses to the tenants in case the details are ever needed in court and keep a log of any repair work undertaken.
Hughes also recommends that landlords retain any evidence they might have of occasions on which tenants have refused to allow access to the property for inspections or for repair work to be undertaken as if a case goes to court this could prove vital.
Most importantly, they should check whether there are any outstanding complaints with the property and address any such issues before service of notice under Section 21.