Retaliatory, “revenge” Evictions – The New Law & What It Means

There has been a great deal of media coverage and hype about so called “Revenge Evictions” over the last few months which has led to amendments being made in the law from the 1st October 2015 that affects when a Section 21 Notice can be served and what will deem the Section 21 to be ‘retaliatory’.

The substance of the retaliatory eviction amendments are:

Preventing Retaliatory eviction

(1) Where a relevant notice is served in relation to a dwelling-house in
England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house-
(a) within six months beginning with the day of service of the relevant notice, or (b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where-
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,
(b) the landlord-
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,
(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord, (d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and
(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which-

(a) provides a description of the action that the landlord proposes to take to address the complaint, and
(b) sets out a reasonable timescale within which that action will be taken.

(4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.

(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.

(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).

(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.

A ‘Relevant Notice’ is

(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or

(c) a notice served under section 40(7) of that Act (emergency remedial action);

“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

So, from the 1st October 2015 the process is: tenant writes to landlord or agent (assuming either can be found) giving notice of problem to which the landlord then has reasonable time to sort. If not, the tenant can complain to the Council who will come to inspect the issues. An Improvement/remedial action notice can then be issued and from that point, any section 21 notice issued after the tenant’s written notice becomes invalid, including in on-going possession proceedings (see (6)).

What this means is not only that an Improvement/Remedial notice is the only way to trigger the ‘invalid section 21 notice’, but that there is a definite timescale – if a possession order has already been made, a subsequent notice by the Council is of no effect in overturning the possession order.

There is an exception for the defect/issue being caused by un-tenant-like behaviour (which will be fun with mould issues that have occurred since the tenancy has started), or where the property is up for sale (with restrictions).

What we at Marlou Property are noticing however is that for the process to work, it is utterly reliant on Council Environmental Health Officers reacting and serving notice within the ‘section 21 notice period and possession proceedings before possession order’ timescale. Say 3 months – but this could be less, depending on ‘reasonable period from tenant’s notice and date of service of a section 21 notice. This action by the council is crucial.

And of course, tenants will have to know to go to the Council Environment Health Officers!