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Retaliatory Evictions - A Pre-Emptive Strike?

View profile for Ryan Heaven
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The Deregulation Act introduced a swathe of new requirements relating to Section 21 Notices on 1st October 2015. For tenancies beginning on or after this date, the issue of Retaliatory Eviction can be raised by Tenants which can scupper a Section 21 Notice.

As tenancies that started on or after 1st October are now nearing the point where Section 21 Notices can be served, it is a good time to discuss the potential issues that could come up.

For the purposes of this article, a Landlord’s Agent is considered to be the same as the Landlord.

Section 33 of the Deregulation Act deals with the issue of Retaliatory Eviction and sets out a rough flowchart of things that must take place for a Tenant to successfully raise an issue of Retaliatory Eviction. The sequence of events are as follows:

  1. The Tenant raises a complaint in writing about the condition of the property (if the Tenant does not have the Landlord’s address or email then this can be triggered verbally).
  2. The Landlord serves a Section 21 Notice to evict.
  3. The Landlord does not provide an adequate response within 14 days of the date when the complaint was given. An adequate response is defined as a description and timescale of the repair work that will be carried out.
  4. The Tenant then raises the complaint with the local Housing Authority about the same issue.
  5. The Housing Authority serves a relevant repair notice (Category 1 or 2) on the Landlord in response to the complaint.
  6. The Section 21 Notice will be deemed invalid and cannot be served for 6 months from the issue date of that notice.

Obviously if any of the above steps do not occur (for example, the Tenant does not report the issue to the Housing Authority, or the Landlord provides an adequate response) then the Section 21 Notice will still be valid.

An important caveat is that the Retaliatory Eviction process, as the name might suggest, can only be used if the Section 21 Notice is served after the complaint is received. There appears to be no downside to Landlords serving such notice on the Tenant pre-emptively if they believe that a complaint may be coming.

The clock starts running on the 14 day response time once the letter has been sent – it is not clear what happens if the Section 21 Notice and the complaint letter cross in the post, these are issues that will have to be thrashed out in court.

Defences

It is worth pointing out the defences available to a Landlord who is being faced with a Retaliatory Eviction claim.

If the Tenant has not used the property in a Tenant-like manner or is a result of the Tenant’s breach of their contractual obligations then the Landlord has a valid defence.

At the time the Section 21 Notice was served the property is genuinely on the market to be sold. It seems to me as though this defence could be abused and may require a Statement of Truth signed by a Landlord that their attempts to sell the property are genuine. It seems too easy to put the property on the market for the duration of the possession claim whilst turning down all offers from buyers only to take it off again at the end of the process. Again, this is something that will perhaps be dealt with to avoid abuse.