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The tenant’s dilemmaWarning: your home is at risk if youdare complain
Debbie CrewCrosby, Formby and District CAB June 2007
2
The tenant’s dilemma
Contents
Page
Introduction 4
CAB evidence of the problem 6
The view from the professionals 8
Lessons from abroad 12
Conclusions and recommendations 13
Voices of support 15
Acknowledgements 16
Appendix 1 – Retaliatory eviction provisions around the world 17
Appendix 2 – Security of tenure in European countries 19
Debbie Crew is a CAB worker fromMerseyside whose work on this issue wonher a top campaigning award.
Debbie was presented with the ConsumerAction Award by the Sheila McKechnieFoundation charity. The awards are given topeople who are new to campaigning oroperating with very little resources who aretipped to bring about future social change.
She was presented with the award by theChancellor Gordon Brown MP at a reception at 11 Downing Street in April 2007. Cop
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ht:
Shei
la M
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Sam
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3
In autumn 2006, a woman sought advice from Crosby, Formbyand District CAB. She has lived alone in her privately rentedflat for 13 years and suffers from Crohn’s disease. The propertyis in poor repair with damp and has windows that don’t close.Recently the gas fire was replaced with a two bar electric firebecause the landlord did not want to pay for the chimney tobe swept. This is the only form of heating – it doesn’tsufficiently heat the property and is very expensive to run. Asthe client survives on benefits it is difficult for her to cope bothfinancially and physically since the living conditions aggravateher health condition.
The CAB successfully gained a grant from the ‘Warm Front’scheme for gas central heating. As there was no cost to thelandlord he was happy to have it installed. However, when thecontractors came to survey the site for the work to be carriedout they decided they could not do it. The reason they gave isthat the gas meter was located in the flat on the ground floorwhereas the client’s flat is on the third floor. The landlordrefused to pay the £800 needed to have the meter relocatedeven though the landlord has a duty under the health andsafety regulations to ensure the tenant has access to theirmeter. The lack of such access creates a serious safety hazard,for if there is ever a gas leak, the client has to travel twoflights of stairs to the neighbour’s flat to ask for entry toswitch off her gas supply. If the neighbour is not at home shehas no other means to deal with the problem other thancalling emergency help.
The bureau advised her that she could take action to requireher landlord to deal with these health and safety issues.However, if she exercised this right, she could lose her home asthe landlord could retaliate by serving two months’ Notice toQuit, for which no reason is required.
She reluctantly decided not to go ahead because the landlordhad previously served notice on tenants who have tried tohave urgent repairs carried out. As a result, she will continueliving in unsatisfactory and dangerous conditions which aredetrimental to her health.
4
The tenant’s dilemma
Introduction
A serious weakness with current housinglegislation is that it doesn’t protect privatetenants from eviction when exercising theirrights to have repairs and health and safetyissues addressed. We believe there needs tobe urgent reform of the legislation to addressthis problem, so that tenants don’t have tochoose between living in poor conditions andbeing evicted.
This report proposes that restrictionsshould be placed on private landlords’ useof Section 21 – the fast-track ‘no fault’means of evicting a tenant – to prevent itbeing used in retaliation in circumstanceswhere a tenant has recently taken steps toenforce statutory rights regardingdisrepair or health and safety issues.
Section 21 of the Housing Act 1988 enables alandlord to legally end an assured shortholdtenancy agreement by serving a NoticeRequiring Possession upon the tenant, givingthe tenant a minimum of two months’ notice.This Notice applies to a statutory periodictenancy – that is a tenancy that automaticallycontinues after the expiry of a fixed termassured shorthold tenancy. As long as thisNotice is served correctly there is no defencefor the tenant against the repossession of the
property. As landlords are not required to givereasons, they may legally use this procedure asa retaliation tactic if a tenant tries to getrepairs or safety issues addressed.
This has severe consequences for privatetenants who often do not dare risk takingaction to exercise their statutory rights. Theyare therefore forced to continue to live in poorconditions which have a detrimental effect onhealth and wellbeing.
Government statistics provide an indication ofthe scale of the problem. Questions includedin the 2000 Survey of English Housing showedthat 21% of private tenants were dissatisfiedwith the way their landlords carried outrepairs and maintenance of their property. Yetonly one quarter of those tenants said theyhad “tried to enforce their right”. When thosewho had not taken action were asked whynot, 21% said they did not want to causetrouble with their landlord, and a further 5%felt their tenancy would be ended if they triedto get repairs carried out. One third ofrespondents replied that they ‘didn’t think itwas worth the effort’, which may indicate alack of confidence that landlords wouldrespond constructively.
Private tenants were over represented in themost deprived wards where they accountedfor 17% of all households as compared with10% overall.
The problem of retaliatory eviction also hasconsequences for public policy on two fronts.Firstly, one of the Department of Communitiesand Local Government’s (DCLG) key targets(PSA 7) is to increase the proportion ofhouseholds in the private rented sector wholive in housing defined as ‘decent’ (see box). Yet achieving this aim is made moredifficult if tenants are deterred from takingaction that could force landlords to carry outrepairs.
5
Disrepair in the private sector is a significantproblem as demonstrated by theGovernment’s latest House Conditions Survey(DCLG, 2006). This shows that almost amillion private rented homes fail theGovernment’s decent homes standard – ahigher percentage (43%) than in any othertenure. What is more, vulnerable households(defined as people in receipt of a means-tested or disability related benefit) are worstaffected, with almost half living in non-decenthousing.
For a dwelling to be considered ‘decent’ itmust:
■ meet the statutory minimum housingfitness standard
■ be in a reasonable state of repair
■ have reasonably modern facilities andservices
■ provide a reasonable degree of thermalcomfort.
Secondly the problem of retaliatory evictionfrustrates a central plank of the Government’shousing policy which is to reducehomelessness. Eviction from an assuredshorthold tenancy is one of the most commonreasons for households becoming statutorilyhomeless. In 2006, 10,470 households wereaccepted as statutorily homeless by localauthorities following eviction from an assuredshorthold tenancy, accounting for around13% of all homelessness acceptances (DCLGhomelessness statistics, 2006).
6
The tenant’s dilemma
CAB evidence of the problem
In 2005/06 the CAB service dealt with over72,000 problems relating to private rentedhousing, of which 13% related to repairs andmaintenance issues and 14% to security oftenure. One of the frustrations which CABadvisers face when advising private tenantsabout disrepair is that any advice about theirrights has to come with the warning thatexercising these rights may result in thelandlord issuing notice to quit.
This problem is graphically demonstrated bywhat happened to a client of Crosby CAB(see page 3), whose experiences were thecatalyst for this campaign. However this caseis not unusual and indeed bureaux fromaround the country regularly report similarcases:
A CAB in Cornwall reported an elderlycouple with long term health problemswho had repeatedly told their landlordabout problems with persistent mouldgrowth on the walls. He supplied adehumidifier and advised the clients touse a strong bleach solution on afortnightly basis. The client was fed upwith having to do this and was alsoconcerned that the bleach could be
affecting his wife’s health. They wouldlike to insist on proper action beingtaken but fear that the landlord wouldserve notice if they did.
A CAB in Yorkshire reported a couplewith an 18 month old baby who hadmoved into their private rented threebedroom property two years previously.The house was in serious disrepair:windows were cracked, one bedroomand the bathroom windows wereboarded up and a shower had beeninstalled in the main bedroom with noassociated ventilation. The immersionheater had wiring hanging off the wall,secured insufficiently with black tape andthe gas fire in the living room had beencondemned by a gas engineer. Thelandlord replaced the gas fire with a twobar electric heater but their home wasstill cold. As the bathroom was unusablethe baby was bathed in kitchen sink,which was increasingly unsuitable as thechild grew. The family were living inconditions which were a health risk,especially for the baby. However, theywere concerned that if they sought thehelp of the Environmental HealthDepartment they ran the risk of eviction.
These fears are in many cases well groundedas clients have taken action and have beenserved Notice to Quit as a result:
A couple with four children living in theMerseyside area had moved into theirflat in September 2006. They werealready tenants of the landlord but astheir last property was in such baddisrepair the landlord agreed to movethem to another of his many properties.
This property was extremely cold anddamp with a black mould depositcoating the ceilings and walls. Thewindows were in severe disrepair anddidn’t close properly and there werestructural defects to the living room
7
walls. Since the boiler had broken downthey were without heat or hot waterover the winter months and relied onone Calor gas heater, which was havingan adverse affect on the damp. The14 year old child slept on the sofa as thebedroom was covered in mould. Hisbrother aged six had severe asthmawhich was aggravated by the livingconditions.
The landlord had refused to put thingsright, despite numerous requests. Theclient therefore sought help from theEnvironmental Health Department.However the landlord then retaliated byserving the client with a Section 21Notice. This family had to be re-housedby the local authority under theirhomelessness duty.
A CAB in East Sussex reported a couplewho had been renting theiraccommodation for over five years. Overthat period they estimated that they hadspent £5,000 – £7,000 of their ownmoney on improving the propertyincluding installing a new back door andretiling the kitchen and bathroom. Theproperty is badly in need of repairs andmodernisation and Environmental Healthhad requested the landlord to sort outdamp and security problems. Howeverthe work had not been carried out andthe tenants therefore called inEnvironmental Health who carried out aninspection and sent a list of repairsneeded to the landlord with a copy tothe tenants. The landlord promptlyissued both the clients and the occupantof the upper flat with Notices to Quit.
A CAB in West Sussex reported a couplewith two young children whose propertywas in serious disrepair. When thelandlord refused to carry out essentialrepairs, the clients complained toEnvironmental Health who issued aschedule of works to be done. Thelandlord then served a Section 21 Noticeon the clients. When the bureaucontacted the homelessness departmenton the clients’ behalf, the homelessnessofficer said it was common practice forlandlords to seek to evict tenants whoinvolved Environmental Health.
In some cases landlords have even used theirpower to evict as a bargaining tool to try toget the tenant to pay for the work needed:
A CAB in East London reported a clientwhose flat was in serious disrepair. Shereported this to the council who deemedthe property not fit for humanhabitation. When the landlord found outthat the client had reported the problem,he issued a Notice to Quit. However heoffered to let the tenant stay as long asshe agreed to a rent increase of £110per week to cover the costs of the repair.
A CAB in Hertfordshire reported a clientwhose landlord served a Section 21Notice two days after she complainedabout damp. He also told the client shewould not get back her £1,000 depositunless she rectified the damp problem.
8
The tenant’s dilemma
The view from theprofessionals
Although advice agencies such as CitizensAdvice Bureaux regularly see clients faced withthe fear or threat of retaliatory eviction, it isEnvironmental Health Officers (EHO) andTenancy Relations Officers (TRO) of the localauthority who are in the front line dealingwith such cases on a daily basis. It wastherefore felt to be important to attempt toassess the extent to which these officersbelieved that retaliatory eviction was asignificant problem which needed to beaddressed.
A short e-mail survey was therefore carriedout with environmental health officers andtenancy relation officers through the mediumof LACORS (Local Authorities Coordinators ofRegulatory Services) and the Association ofTenancy Relations Officers. Responses werereceived from 129 officers across England andWales, as shown in Table 1.
Respondents were asked whether, in theirexperience, people were put off using thehelp offered by environmental health andtenancy relations officers because they didn’twant to put their tenancy in jeopardy. AsTable 2 shows, all the respondents had had
clients who were deterred from accepting helpbecause they were afraid of repercussionsfrom landlords if they pursued a course ofimproving their accommodation in line withenvironmental health standards. Forty eightper cent of respondents said this happenedalways or often.
Table 2: Are tenants put off using helpbecause of fears of jeopardising tenancy?
0%
10%
20%
30%
40%
50%
60%
NeverSometimesOftenAlways
2%
46%
54%
0%
Table 1: Region of respondents
Nos. %
North West 40 31
Midlands 24 19
London & South East 17 13
North East, Yorkshire and Humber
16 13
East England 14 11
South West 12 9
Wales 6 5
Total 129 100
9
In their comments, most of the respondentsagreed that tenants were afraid and thatthese fears were grounded. One respondentput it succinctly stating:
“I would say that the majority of cases inwhich I have taken enforcement action,the tenants have been threatened witheviction by the owner of the property asa result of my intervention.”
Another officer highlighted the problemsfacing tenants who live in rural locations:
“We frequently experience reluctancefrom tenants for us to pursue formalaction. Our authority is rural and familieshave particular worries as they havechildren at a village school and there isprobably no other rentedaccommodation available in thecatchment.”
Respondents were asked whether theybelieved there needs to be more security forprivate tenants when they are exercising theirstatutory rights. A large majority ofrespondents (81%) felt there was a definiteneed for more security for tenants. Only threerespondents disagreed with this.
Table 3: Need for more security fortenants when exercising statutory rights?
0%
20%
40%
60%
80%
100%
Not neededPossiblyDefinitely
81%
16%
2%
The comments offered showed a diversity ofideas and suggestions about the issues andhow to remedy retaliatory eviction:
“The issue will remain invisible if tenantsare too intimidated to complain. It is forthis reason that there should be somelegal protection for tenants in thesecircumstances.“
“There must be adequate access tospecialist housing lawyers who can draftproceedings and/or enter intonegotiation. The telephone advicescheme is really not a solution. It ispointless having a remedy unless thereare methods for it to be enforced.”
“The tenant should have someprotection. However, there also needs tobe protection for landlords as there willbe tenants who use this as a way ofavoiding eviction that may well bewarranted. Someone who can give animpartial opinion like the ResidentialProperty Tribunal would be in a goodposition to judge each case on itsmerits.”
Finally respondents were asked what theythought of the idea of legislation to precludea landlord from serving a Section 21 Notice ifthe tenant has taken steps to exercise astatutory right. As Table 4 shows, there waswidespread support for such a change,although most respondents recognised thatthis would need to have conditions attached.
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The tenant’s dilemma
Table 4: Attitude to changing legislationon serving a Section 21 Notice
Many officers elaborated their views withfurther comment:
“I feel very strongly about this issue.There are some large landlords whocarry out this practice. Even some of ourmost respected landlords have suggestedto me that they would evict their tenantsif they complained to us. I would bekeen to get involved in any campaign tostamp out this appalling practice whichis an infringement of people’s rights.”
“This is a constant issue with our workin the enforcement team. Tenants whodo complain nearly always end upgetting a Notice to Quit. we need a wayto overcome this issue to deal withunsatisfactory housing conditions in thePrivate Rented Sector.”
“Tenants often report problems withtheir rented property when their tenancyis about to end. They have not reportedthings before because they have fearedthe consequences.
0%
10%
20%
30%
40%
50%
60%
70%
80%
Don't know
Is not needed
Is a good idea with provisos
Would be an ideal solution
20%
78%
2% 2%
Others suggested that a wider review of thesecurity of tenure offered by assured shortholdtenancies was needed:
“The legal position regarding an assuredshort hold tenancy needs to bere-examined. Reviewing the position ofthe 1996 Housing Act would be a start.”
Improved legal protection was not seen assufficient by one respondent, who offeredfurther suggestions.
“Additional legal protection woulddefinitely be a help but I don’t think thisis adequate on its own. Additionalresources are needed to enforce tenancyprotection and environmental healthlegislation. Landlords often get awaywith unlawful treatment of their tenantsbecause EHO workloads are so high thatit is not feasible to prosecute the veryworst landlords. I believe it would alsobe helpful if environmental health andtenancy protection services within localauthorities were more joined-up.”
Several officers responded positively to theissue of legislative change, but felt thatprovisos would be needed to safeguardlandlords’ legitimate interests.
“Before opening this questionnaire Ihave just written an e-mail to seniorofficers in the Council on this verysubject and suggested that we lobby forthe specific change in the law that youdescribe. There must be safeguardshowever to prevent tenants who are inserious arrears or who have damagedthe property from complaining just sothe landlord cannot then evict them.”
“Although I agree the bias is currently infavour of landlords and a change inlegislation is required, there must beprovisos so that landlords canlegitimately evict tenants who havebreached their tenancy agreement in
11
areas not related to the disrepaircomplaint. In addition in several casesthere is evidence that the tenants havecontributed to the problem and thisought to be considered on a case bycase basis.”
“It is not uncommon to visit assuredshorthold tenants and discuss with themwhat action the landlord could take andfor them to decide to approach themthemselves before we become involved.We would always encourage such anapproach and perhaps this should bebuilt into any proviso.”
Overall the survey clearly showed that a largemajority of respondents felt that the problemof retaliatory eviction was a relevant andimportant issue, which they experienced intheir work and needed tackling. The detailedcomments offered showed that the officerswho responded had clearly taken the time tothoroughly consider the questions and issues.
A majority of respondents felt that fear ofretaliation by landlords stopped tenants askingfor advice although a few respondentscommented that some tenants actuallywelcomed a Notice to Quit out ofdesperation, as an aid to obtaining betterhousing in the social sector.
The overwhelming majority of respondents feltthat tenants definitely needed more securitywhen exercising their rights to live in healthyand safe accommodation.
Of those surveyed 98% agreed with the CABthat legislative change concerning Section 21Notices needed to be made.
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The tenant’s dilemma
Lessons from abroad
In an attempt to find a realistic and workablesolution to this problem, we undertook deskresearch to explore how other countries dealwith this issue. Our findings showed thatthere are broadly two approaches.
In a number of European countries retaliatoryeviction is really not an issue as private tenantshave much greater security of tenure. Tenantscan only be evicted in prescribedcircumstances such as rent arrears, damageto property or, in some countries, if thelandlord needs the property for his own home(see appendix 2). It is interesting to note thatin all these countries, there appears to be ahealthy private rented sector which is oftensignificantly larger than in the UK. Thischallenges the traditional argument made inthis country that limited security is necessaryto enable the private rented sector to thrive.
In other countries where tenants have lesssecurity such as Australia, New Zealand andthe United States, there is often specificlegislation in place to protect againstretaliatory eviction (see Appendix 1).
In Queensland, Australia, landlords can ingeneral terminate tenancies without reason.However legislation prohibits this happeningwhere a tenant has complained to agovernment entity or taken some other actionto enforce their rights. In these circumstancesthe tenant can apply to a tribunal for an ordersetting aside the Notice to Leave.
There is similar legislation in New Zealand. Atenant can apply to a tribunal for an order todeclare the notice is of no effect on theground that the landlord was motivated bythe tenant exercising a right or remedy. Thetribunal has to be satisfied that the landlordwas so motivated. The tenant’s action cannotbe ‘vexatious or frivolous’ to an extent that itjustified the landlord’s serving notice.
Protection is offered in 39 out of 51 states ofthe USA. In California, if the landlord servesnotice on a tenant who has exercised a rightor complained about the “tenantability” of hisproperty, then as long as the tenant is not inrent arrears, the landlord may not recoverpossession for 180 days.
In Florida it is unlawful for a landlord toincrease rent or decrease services to a tenant,or to bring or threaten to bring an action forpossession or other civil action, primarilybecause the landlord is retaliating against thetenant. In order for the tenant to raise thedefence of retaliatory conduct, the tenantmust have acted in good faith.
It therefore appears that, in comparison withtheir counterparts abroad, private tenants inthe UK are badly served. Not only do theyhave far less security of tenure than many oftheir European counterparts, but they also failto benefit from specific measures to outlawretaliatory eviction which such a lack ofsecurity makes possible.
The evidence from abroad indicates that it ispossible to address the problem of retaliatoryeviction without damaging the viability of theprivate rented sector market.
13
Conclusions andrecommendations
This report has demonstrated how theproblem of retaliatory eviction is oftenassociated with some of the worst aspects ofthe private rented sector where tenants haveto live in properties which are in seriousdisrepair and are often a danger to health andsafety. Moreover the response of landlords canbe to threaten to evict the tenant rather thanto deal with the underlying problem. Webelieve that the continuing existence of suchproperties and the use of such inappropriateand sometimes dangerous practicesundermine Government objectives to createdecent homes for all and to preventhomelessness. They are bad for the reputationof private landlords, damage consumerconfidence and should have no place in athriving private rented sector in the 21st
century.
We therefore recommend that thelegislation should be amended in line withthe government’s objectives to createdecent homes for all and to preventhomelessness. Specifically, where a tenant
has recently taken steps to enforce theirstatutory rights on disrepair or health andsafety issues, landlords should not be ableto use Section 21 to evict a tenantinappropriately. Not only is this proposalsupported by well trodden parallels in othercountries, but it would also be consistent withrecent reforms in housing law in this country.Legislation on licensing prevents landlordsfrom using Section 21 where they do not havethe required license, and the tenancy depositprotection legislation makes use of Section 21conditional on the landlord having met thelegislative requirements concerning depositprotection.
A similar approach already exists inemployment law where an employee cannotbe dismissed for trying to enforce theirstatutory employment rights. In suchcircumstances the dismissal would be deemedunfair. We are seeking a similar outcome for atenant who has a Section 21 Notice served asretaliatory action for attempting to exercisetheir legal right to repair and safety work.
It would also be necessary to include measuresto prevent the landlord from instead takingretaliatory action by imposing anextra-ordinary rent increase.
How could it work?
Tenants facing eviction under Section 21 whofeel action has been taken in retaliation,should be able to present to the court thesteps they have taken to exercise theirstatutory rights and which they felt triggeredthe eviction action. It would then be up to thelandlord to put their case as to why this wasnot a retaliatory eviction.
No separate proceedings would be requiredand the only change would be to give thejudge a power to exercise discretion in theproceedings, based on whether this appearedto be a retaliatory eviction. Landlords whowanted to evict for any other reason, wouldstill have recourse to all 17 mandatory anddiscretionary grounds which cover issues such
14
The tenant’s dilemma
as anti-social behaviour, rent arrears, or priornotice of requiring the premises for use as amain home.
The judge would decide whether the Section21 Notice is upheld or overruled. Once aSection 21 Notice is overruled it should not bepossible for a landlord to reissue a Section 21Notice for a set period of, say, six months.Rent increases should also be prohibitedduring this period.
In addition, as a preventative measure, when aNotice regarding disrepair is issued, this shouldautomatically suspend a landlord’s right to relyon a Section 21 Notice, in the same way thata landlord of an unlicensed House in MultipleOccupation cannot use Section 21.
Longer term reform
In the longer term, use of Section 21 could berestricted to landlords who were members ofa national accreditation scheme which sethigh standards which were properly enforced.If such schemes were voluntary then theywould need to be accompanied by a range ofincentives to encourage landlords to join, suchas access to mediation, support for landlordsand tax breaks. The use of Section 21 couldbe one such incentive and the scheme wouldset out clearly the circumstances in whichSection 21 could not be used.
Landlords who chose not to join would bevery much out in the cold and participatinglandlords who subsequently did not meet theirobligations would be expelled from thescheme.
The landlord perspective
In the course of researching this problem, theauthor discussed the issue with numberlandlords, some of whom own a small numberof properties and some of whom own largeportfolios of housing stock. Both groupsraised similar concerns regarding anylegislative changes – that it is important forthem to be able to reclaim their properties asquickly as possible when they need to.However, they did concede that there aresome instances where the Section 21 Noticemight be abused by landlords in order toavoid meeting their responsibilities. Their mainargument against any change of legislationwas, ‘why change the law for all, when it is asmall minority who are offending?’ However,from the evidence collected by bureauxnationally, together with the response fromthe EHOs and TROs it is clear this is asignificant problem that can affect any privatetenant including the young, the old, and thevulnerable. If the question was rephrased as ‘isit fair that someone should be worse off forexercising their statutory rights regardless asto whether this is a housing, employment orconsumer problem?’, the answer has to be‘no’.
We believe that responsible landlords shouldhave no reason to fear reform as it would onlyaffect those landlords who are actingunethically. On the other hand, reform wouldmake it easier for effective action to be takento improve property standards in the privatesector and prevent the cycle of tenants beingevicted and replaced. A greater confidence inthe private rental sector will be beneficial toall landlords.
15
Voices of support
“Notices served under the Housing Act to dealwith hazards in the home are designed toprotect the health, safety and welfare oftenants. The Chartered Institute ofEnvironmental Health supports any moves toprevent tenants suffering unwarrantedeviction and is happy to support therecommendations in this report.”
Andrew Griffiths Acting Director of Policy, CIEH
“The Association of Tenancy Relations Officers(ATRO) supports any viable change inlegislation aimed at preventing the use ofSection 21 to undermine the pursuit bytenants of their legal rights and remedies.ATRO's members report that many tenantswith shorthold tenancies are reluctant toexercise their statutory rights on issues suchas disrepair, harassment and non-issue of rentbooks for fear of retaliatory eviction by theirlandlord. Tenants should be able to pursuelegally enshrined rights without the fear oflosing their home.”
Andrew GreatheadSecretary, ATRO
“Shelter strongly supports this campaign toend retaliatory evictions. Much of our adviceand lobbying work is aimed at preventinghomelessness and this campaign would helpensure that, rather than being part of theproblem, the private rented sector can be partof the solution. It is vital that tenants in theprivate rented sector have protection toenable them to take action on disrepairwithout the risk of losing their home.”
Adam SampsonChief Executive, Shelter
“We are pleased to support this campaign.Responsible landlords get no benefit fromretaliatory evictions and accredited landlordshave no need for them.”
Tom ToumazouProject Manager, Decent and
Safe Homes Project
“We would welcome a clause within Section21, which would prohibit landlords from usingthis legislation to evict a tenant purely becausethey have made a complaint to the Councilabout poor property conditions. We frequentlyspeak to tenants who have experienced theseactions or who fear they will be served withan eviction notice if enforcement action istaken by ourselves.”
Clare TaylorPrincipal Environmental
Health Officer, Sefton Council
I support the campaign to protect tenantsfrom retaliatory eviction, as it would reducethe number of tenants finding themselveshomeless, as a direct result of tackling theirlandlord with legitimate complaints.”
Sarah Green, Re-housing Services Manager Liverpool City Council
“As an authority, we are very concernedabout the lack of protection for privatelandlord residents and will look for initiativesand positive responses to help people in thispredicament.”
Steve GuyHousing Strategy Manager
Liverpool City Council
“We have heard numerous cases ofunscrupulous landlords exploiting this loop-hole. We fully support the campaign tointroduce similar reforms as those applying inemployment law where to be sacked forexercising your statutory rights is deemed asautomatically unfair. Our organisations arefully supportive of Crosby CAB’s retaliatoryeviction campaign.”
North West Tenants and ResidentsAssembly, Yorkshire and the Humber
Tenants and Residents Federation, North East Council of Tenants
and Residents Associations
16
The tenant’s dilemma
AcknowledgementsIn the process of gaining information for thisreport, I have had the pleasure of speaking topeople from many different organisations. Thishas allowed me to examine the problem ofretaliatory eviction from different perspectivesand the impact it has. Without the advice andexpertise of the organisations below, it wouldnot have been possible to bring the issue tothe forefront. My initial plan was to raise theprofile and provide a voice for the manytenants who have to live in substandardaccommodation though fear of eviction. Thisbegan as a small project at a local level.However, it resonated with so many peoplethat before long there was a wave of nationalsupport.
I would like to thank:
Everyone at Crosby, Formby and District CABSpecial thanks to Barry Dooley and AndreaSharp, for their valuable help in researchingretaliatory eviction provisions abroad
All the staff at Citizens Advice particularlyDavid Martin and especially to Liz Phelps,without whose experience, support and beliefin the issue, this report would never havebeen produced.
Claire Curtis Thomas MP and her amazingteam
Environmental health and tenancy relationsofficers locally and nationally who respondedto the survey
Richard Tacagni and Emma Banfield, LACORS,for helping to get the survey to the rightpeople
Additional help came from:
Alex Brown, secretary, Yorkshire and theHumber Tenants and Residents Federation
Alex Marsh and Professor Martin Partington,Law Commission
Andrew Greathead and everyone at ATROAndrew Griffiths, Chartered Institute of
Environmental Health
Barry Markham, Chief Executive, NationalFederation of Residential Landlords
Bernard Caine Chairman and James DevlinVice Chair, North West Tenants andResidents Assembly
Bill Rashleigh, ROOF magazine Catherine Dolman, writerCatherine Green, Wirral CouncilClaire Taylor, Sefton CouncilColin Bennett, Landlord Accreditation Team,
Salford City CouncilColin McPherson, photographerDebi Jones, Sefton CouncillorIrene Hall, researcherJacky Peacock, Director of Brent Private
Tenants Rights GroupJessica Mulley, Communities and Local
Government Select CommitteeLynn Smith, Chair, North West Property
Owners AssociationMichael Hall Chairman North East Council
of Tenants and Residents Associations Pete Price, Radio CityRob Rylott, Housing Standards Manager,
Derby City CouncilSarah Elliott, Consumer Correspondent at
Granada TVSheila Kirk, Landlord Accreditation, Liverpool
City CouncilShelter staff, locally and nationally, particularly
Sarah Mitchell, Paul Edwards, John RyanSteve Guy, Liverpool Council Tony McVey, Secretary, North West Property
Owners AssociationVijay Jethwa, Private Sector Officer, Blaby
District CouncilWendy Herman, Tenants’ Union of
Queensland Will Hatchett and Tom Wall, Environmental
Health News
17
Appendix 1 – Retaliatoryprovision around the world
New Zealand
On the presentation of Notice to Quit, thetenant may make an application to theTenancy Tribunal to ask for an order to statethe notice will have no effect. If the Tribunalagrees the Notice to Quit was given inretaliation the Tribunal will make an orderstating that the Notice has no effect.
Australia
New South Wales
Under the Residential Tenancies Act 1987,the tenant may apply to a tribunal in orderto resolve matters such as where the landlordhas increased rent in retaliation.
Queensland
The Residential Tenancies Authority (RTA) isthe statutory body responsible foradministering the Residential Tenancies Act1994 and the Residential Services(Accommodation) Act 2002. Under thislegislation if the landlord retaliates against thetenant by giving the tenant a Notice to Leave,the tenant can apply directly to the SmallClaims Tribunal to have the Notice set aside.The Small Claims Tribunal can hear andresolve tenancy disputes.
Tasmania
The Residential Tenancy Act 1997 sets out therules which apply to residential tenancies inTasmania. There are several provisions underthe 1997 Act which outline the landlord’sobligations to maintain the property andrespond to notification of repairs required. Ifthe tenant cannot contact the landlord thereare procedures which they may follow in orderto have the repair done and then bereimbursed by the landlord.
South Australia
The law regarding tenancy is laid out in theResidential Tenancies Act 1995. When an issuearises such as retaliatory eviction, the tenantmay apply to the Tribunal for assistance. Thereare limitations on the landlord’s right toterminate. In relation to a housingimprovement notice, the eviction must be onspecific grounds with the Tribunal’s consent.
Victoria
The Landlord and Tenant Act 1958 providesrestrictions on eviction. Provisions give thecircumstances under which notice of evictionwill be permitted. A landlord cannot servenotice without reason. This has the effect oflandlords being unable to evict a tenantthrough retaliation. Under s73 ResidentialTenancies Act 1997, when a required repairhas still not taken place after an inspectionreport has been received, then the tenant has60 days to apply to the Victorian Civil andAdministrative Tribunal for a repair order. Inthe case of an urgent repair usually regardinga safety issue, the tenant may organize therepair within a financial limit and then bereimbursed by the landlord.
Western Australia
The landlord may only terminate the tenancyon specified grounds.
For further information regarding AustralianLaw visit www.austlii.edu.au.
18
The tenant’s dilemma
USA
Out of 52 States, 39 have Retaliatory Evictionstatutes:
Common examples of conduct for which thelandlord may not retaliate include:
■ The tenant has complained in good faithto the landlord, department of health,building department, officer of consumerprotection or any other governmentalagency.
■ The landlord has been served notice,complaint or order by such agencies
■ The tenant has sought to enforce rightsand remedies available to them by lawfulmeans.
■ The tenant has become a member of atenant’s union or similar organisation.
■ The landlord acts in violation of the rentalagreement
In a majority of states where a RetaliatoryStatute exists, the landlord is prohibited fromincreasing the rent in retaliation, to anamount in excess of fair-market value.
AlaskaArizona California Connecticut Delaware District of Columbia Florida Hawaii Illinois Iowa Kansas Kentucky Maine Maryland Massachusetts Michigan Minnesota MississippiMontana Nebraska
NevadaNew Hampshire New Jersey New Mexico New York North Carolina Ohio Oregon Pennsylvania Rhode IslandSouth Carolina South Dakota Tennesee Texas Vermont Virginia Washington West Virginia Wisconsin
Notwithstanding the above the landlord maystill bring an action for possession if:
■ The disrepair was caused primarily by thelack of reasonable care by the tenant
■ The tenant is in default in rent
■ In compliance with the application buildingor housing code, the property requiresalteration, remodelling, or demolitionwhich would effectively deprive the tenantof the use of the dwelling.
■ The dwelling has been used for illegalpurposes or any other violation of thetenant’s rental agreement.
■ The landlord seeks in good faith to recoverpossession of the dwelling for theimmediate use as the landlord’s own abodeor the landlord’s immediate family.
For example – how it works in Alaska
An aggrieved tenant who believes that theproposed eviction is in retaliation can file acomplaint with the board.
Within five days of the tenant filing thecomplaint, the board will determine if there isreasonable cause to believe that the reasonsfor eviction are not valid. It shall be presumedthat there is reasonable cause to believe this ifthe tenant has previously filed a complaintagainst the same landlord.
If the merits of the complaint are accepted bythe board, notice of the complaint will be sentto the landlord. Once the landlord receivesthis notice they may not implement theproposed eviction until issued with acertificate of eviction specifying that thereasons for the eviction are valid. This will bedecided at a hearing by the board.
Further information regarding the UnitedStates of America laws on retaliatory evictioncan be retrieved from Survey of State Lawsregarding retaliatory provisions, Alliance forhealthy homes (2004) www.afhh.org/res/res_pubs/disclosure_Retaliatory_Laws.pdf
19
Appendix 2 – Security of tenure in European countries Po
ssib
le t
o
app
eal?
Wh
at r
easo
nn
eed
edto
evi
ct?
% P
riva
tely
ren
ted
dw
ellin
gs
Ho
w m
uch
no
tice
req
uir
ed f
rom
la
nd
lord
Typ
ical
len
gth
of
con
trac
t?
Ger
man
y
Fran
ce
Spai
n
Ital
y
Irel
and
No,
Sec
tion
21 N
otic
esar
e m
anda
tory
with
no
scop
e fo
r ju
dici
aldi
scre
tion.
Non
e12
% (
2006
)2
mon
ths,
but
can
be
serv
ed 2
mon
ths
befo
rein
itial
con
trac
t pe
riod
ends
.
6 m
onth
sU
nit
edK
ing
do
m
Priv
ate
Resi
dent
ial
Tena
ncie
s Bo
ard
prov
ides
an
info
rmal
,ch
eap
and
spee
dy f
orum
for
reso
lvin
g di
sput
es.
No
reas
on in
the
firs
t6
mon
ths.
For
the
nex
t31 ⁄2
year
s on
ly f
orsp
ecifi
c re
ason
s su
ch a
sa
brea
ch o
f co
ntra
ct.
11%
(20
06)
Firs
t 6
mon
ths
– 28
day
sTh
en a
slid
ing
scal
e up
to 1
12 d
ays
afte
r4
year
s.
Aft
er t
he f
irst
6 m
onth
ste
nanc
y is
ext
ende
d fo
ra
furt
her
31 ⁄2ye
ars.
Yes
Mus
t be
a s
peci
fic,
legi
timat
e an
d su
ffic
ient
reas
on.
16%
(20
01)
6 m
onth
s3
or 4
yea
rs
Yes,
tho
ugh
it is
ale
ngth
y pr
oces
s..
Spec
ific
reas
on r
equi
red,
and
then
cou
rt o
rder
mus
t be
sou
ght.
10%
(20
01)
1 m
onth
bef
ore
annu
alre
new
al d
ate,
tho
ugh
acqu
iring
an
evic
tion
orde
r ca
n ta
ke m
any
mon
ths.
Tena
nt h
as r
ight
to
annu
ally
ext
end
cont
ract
for
up t
o 5
year
s.
Yes
Mus
t be
for
a s
peci
fic,
legi
timat
e re
ason
.20
% (
2002
)M
inim
um 6
mon
ths
Min
imum
of
3 ye
ars/
1ye
ar m
inim
umco
ntra
ct (
unfu
rnis
hed/
furn
ishe
d).
Yes,
a la
ndlo
rd’s
legi
timat
e re
ason
can
be
over
ridde
n fo
r up
to
aye
ar if
cau
ses
hard
ship
to t
he t
enan
t.
Very
spe
cific
rea
son
requ
ired.
51%
(20
02)
If it
wou
ld r
esul
t in
hard
ship
, te
nant
can
forc
e co
ntin
uatio
n fo
rup
to
1 ye
ar.
Maj
ority
are
unl
imite
dco
ntra
cts.
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