The Deregulation Act and “Retaliatory Eviction”- A Word of Warning

Landlords acting in good faith who on the one hand fully intend to carry out timely repairs where they are found to be necessary and who on the other hand wish to regain properties let under Assured Shorthold Tenancies (“ASTs”) should apprise themselves fully of S.33 of the Deregulation Act 2015.

This part of the act (which has many other implications for landlords, discussed in other articles on this site) deals with the prevention of what is termed “retaliatory eviction”.

The guiding principle of this section is to prevent innocent tenants from being served with s.21 notices by landlords just because they have raised complaints about the condition of the property in question.

The section tries to combat this by introducing new rules which state that any section 21 notice which has been served by a landlord under an AST will be deemed invalid where the following three events have occurred:-

1. The tenant has made a written complaint about the condition of the property to the landlord prior to the s.21 notice being served; and

2. The landlord has failed to provide an adequate written response (an adequate response is defined as one which describes what remedial action the landlord will take and sets a timescale as to when it will be taken) to that letter within fourteen days of receipt; and

3. The tenant has complained to the Local Authority about the same issue(s) and the Local Authority has then issued a remedial notice, following inspection.

If the s.21 notice is served prior to receipt of the tenant’s written complaint, it will remain valid. It if is served after receipt of the written complaint, it will be invalidated only if the circumstances at 2 and 3, above, arise. Any possession proceedings which have been issued on the back of an invalidly served s.21 notice should be struck out by the court, even if the notice was not necessarily invalid at the time of service (eg, at the time, the written complaint had been received but the remedial notice had not been issued by the Local Authority).

S.33 does not only invalidate s.21 notices served in the circumstances above, it also prevents a landlord from issuing a s.21 notice for a period of 6 months from the date on which the remedial notice was served by the Local Authority.

It should be noted that where a Landlord can prove that the condition of the property complained about is due to the action of the tenant, the provisions of the act will not apply.

As detailed above, it is possible that a landlord acting in good faith which fully intends to carry out necessary repairs could be caught by the provisions of the act and be prevented from recovering its property using a s.21 notice for a period of 6 months. This would present obvious commercial and practical problems.

To avoid this happening, landlords should be constantly on the lookout for written complaints from tenants about the condition of a property, particularly in relation to tenancies which are nearing the end of their fixed term. Written complaints should be acknowledged swiftly, the property should be inspected and, if repairs/improvements are necessary, the “adequate written response” described at point 2 above, must be issued within the 14 day period. Provided that this is done and that the necessary improvements are carried out within a reasonable period, the landlord can then serve its s.21 notice as previously planned to regain possession of its property without being accused of retaliatory eviction.

For further advice on this or any other Landlord and Tenant Law issues, please do not hesitate to contact Michael Adamson, Head of Property Services, on 0333 200 5203 or by email at michael.adamson@greenhalghkerr.com.