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Evictions Landlords Legal Possession Section 21 Section 8 Tenants

“Evicted For No Reason”

On Wednesday 21st February, the BBC aired their flagship documentary programme, Panorama, and this week it was about the Private Rental Sector and what has become known as “No Fault Evictions”.  This programme has come about because of the widely debated Section 21 Notice and whether tenants deserve more protection from Landlords, or whether new rules to outlaw the Section 21 would make the housing crisis worse. Some still say that The BBC strive to be impartial, many others have different thoughts.

In my view, this programme was heavily tilted towards the Tenant and their rights and did not interrogate them about their responsibilities.  The continued use of the term “No Fault Eviction”, which has become fashionable from such anti-landlord places like “Shelter” and “Generation Rent” was a blatant attempt to brainwash the viewers into thinking that tenants who are served this notice are not at fault.

The reporting positioned the viewer to believe that Landlords were simply turning tenants out of their homes and kicking them out on the street for no reason whatsoever (no fault). The programme never sought to explain the process of the Section 21 (that is the correct term for this possession notice) and why it came about in the first place, and that a Landlord has to go through a process and the Courts for the eviction to be legal. The reporter, Richard Bilton didn’t explain the law and how it protects tenants who are in a Fixed Term Tenancy, nor did he explain the many reasons why a Section 21 cannot be served, and he didn’t even attempt to mention the many imbalances in the law which favour tenants, one for example where a tenant does not have to give a Landlord any notice to bring a fixed term tenancy to an end (they can simply up and leave on the last day of the tenancy without giving notice) whereas the Landlord must provide the tenant with two months notice at all times – how does that sound fair ?

Richard Bilton stated that last year that there were more than 24,000 of these “No Fault Evictions” (perhaps making the viewer think that 24,000 households were kicked out of their homes without one single fault!). The implication that Landlords kicked 24,000 households out of their homes simply because Landords felt like it is a dreadful accusation and should never have been allowed to go unchallenged, and of course, the reporter asked the inevitable question “So should tenants be evicted when they haven’t done anything wrong?”

Later in this article I have written about what I believe the BBC should have investigated if they are to be seen by all their viewers and licence fee payers as being impartial and balanced, but before we get there, here’s an overview of the story line and my comments about the particular tenants in this “documentary”.

The McGlashan Family

Richard Bilton introduced us to the McGlashen family just as they were packing up their household belongings and loading them into a Van. The viewer was told that “They have fallen out with their Landlord” but we were not told to what extent that fall out was and what caused it in the first place, we simply had to believe that there had been a falling out. We were then told that the Bailiffs were due to turn up “tomorrow at 11.00 am”. If you know what the process for the Section 21 is, this meant that the McGlashen’s had taken their “fight” all the way to the very end and had not left the property on the anniversary of the two month notice period, costing their Landlord more in Court costs. Most Landlords who have been through this experience will know that the time scale involved to get to the point of the Bailiff visit can be up to six months, well beyond the two months notice period, and during that period, Landlords can expect little or no rent.

Once again, we were reminded that this was a “No Fault Eviction” but we did know why the tenant had fallen out with her landlord, obviously it wasn’t her fault!  We were also told that the Landlord wanted to increase the rent by £400.00 per month, which was another reason for the eviction. As a percentage, could you imagine what level of increase the rent would be if  increased by £400.00 per month? it would be huge by any measurement, but yet again, it went unchallenged and without proof.  With no independent evidence to confirm this alleged rent increase, we were left with Laura’s word against the Landlords.

As the the family were now officially homeless, they were moved to a B&B because they could not afford London rents. The B&B looked pretty bad to say the least and I have every sympathy for anyone who ends up in a place like that, but I am not convinced that the reasons behind this eventuality are wholly the Landlords and that the Tenant was totally innocent and at no fault.

Laura’s story ended with her leaving the B&B and being found a property, which of course is good news. We were told that the she didn’t get the time to move her furniture out of the property and now her landlord is ignoring her calls. If that is indeed the case, then the Landlord is breaking the criminal law so Laura has redress and she should use it. Tenants are very heavily protected in this respect and I know many Landords who are frightened to even go anywhere near belongings obviously abandoned by tenants, long after they have left. We were then told that Laura had lost her job and that she blamed it on the eviction and moving home, but she would wouldn’t she?, and all along, the BBC let all of this go unchallenged!.

Richard Bilton quite rightly pointed out the importance of the Private Rental Sector (PRS), but added that it’s growth was due to the housing shortage. Around 13 million people access the PRS, so couldn’t the growth of the PRS be to do with such things as migration, changes in how households now live together (or don’t), or even the flexibility that the PRS offers our flexible workforce? It’s just a thought, and worth throwing into the mix!

He also stated that Tenants in the UK were the least protected in Europe but we were told by a Solicitor specialising in Housing Law that the rules and laws are mostly in favour of the tenant, something which every Landlord know to be true, and which this reporter should have investigated further, after all, the BBC managed to find the time to establish that the UK PRS is less regulated than their European counterparts. Had the BBC investigated the solicitors remarks, they would have found that she was indeed telling the truth.

Ava from Croydon

Ava was now living in a Converted Office Block after being evicted twice before, apparently both under Section 21(no proof of that!).She’s now homeless so the Council have housed her in the “office block”, which actually is a flat which has been converted from an office block – obviously, they wanted you viewer to think that she had been kicked out under a “no fault eviction” and that she was now living in an some old office!. Despite working full time, Ava couldn’t afford another rental home after her two evictions and that this was the fourth place she had lived in in eighteen months, that was something I certainly wanted to know more about but we didn’t find out!  Why was Ava evicted on two previous occasions and why wasn’t she interrogated on this point and could these “evictions” have something to do with her not going back into the PRS,? I suspect so. Surely, two evictions and four moves in eighteen months would warrant questions from any self respecting reporter, living in four properties in eighteen months should certainly raise more questions.

Julie The Beautician

It was claimed that Julie was the victim of a “Revenge Eviction” for complaining about her property.  We were told that Julie had lived in the house for four years and had always paid her rent. Apparently, she complained repeatedly about problems such as a leaking shower. We were also told that Julie was offered a new lease, which she didn’t sign and after three months the Landlord issued the eviction notice. I couldn’t believe this too!  This lady has accused the Landlord of evicting her for her simple complaint about the leaking shower, but he then offered her a new tenancy,  which she chose not to sign, does this make any sense?  Exactly what is the Landlord to do in a situation where a tenant will not renew their tenancy, just wait around until they decide they will? We were told that Julie’s Landlord had said he carried out the repairs but was fed-up with her trivial complaints and that was her only “fault” but did you really believe this?  As a Tenant, it is Julie’s prerogative not to sign a new tenancy agreement but it is also her Landlords right to ask her to leave if she chooses not to sign, what is wrong with that? Could you imagine a situation where Tenants could do what the heck they wanted but Landlords didn’t have any power over the properties they actually own?  One thing is for certain, if that happens, the PRS in this country will collapse overnight.

Julie also stated that she had spent nearly £40,000 to “live here” and she’s got nothing to show for it.  May I remind Tenants and Julie in particular, this is called rent, you are paying for a roof over your head, that is what you are paying for ! Julie’s story ended by being told that the property she was going for had “fallen through” and that her “bad landlord” had extended her tenancy. In the end, she managed to secure another property and that’s a good news story, but I for one would really like to know the true extent of what caused Julie to lose her property in the first place!

Then Richard Bilton gave a brief section of the programme over to a Landlord (yes, that’s correct, three tenants, one Landlord) and how precarious the PRS can be for them too, actually saying that “bad tenants can quickly cost you thousands” (under statement) and that Section 21 evictions can feel like a lifeline for Landlords – he now refers to it as a Section 21 Notice and not a “No Fault Eviction”!

Francis Carpenter

Francis works as a hotel cleaner and also rents out two properties and she’s not happy with one of her tenants and despite her punk appearance (no issues there, we were all punks once), she is very typical of an amateur Landlord. It seems that her tenant has been a bit naughty and installed a satellite dish and changed the utility meters without permission, the rent was late and then the tenant decided that he couldn’t pay and wanted to pay half the rent at the beginning of the month and half at the end.  Obviously, Francis is going to be hugely out of pocket, rightly pointing out that you can’t go to a supermarket and pay for some of the shopping now and the rest of it later.  Richard Bilton said that the tenant always paid the rent “eventually” and that he had a school aged daughter and the eviction could leave them homeless, perhaps he should have thought about that!  He asked the Landlord if she was being a “bit brutal” by using the Section 21, but it seems to me and to anyone else that this was probably her only option. It appeared to me that the reporter was quite nonchalant about the rent, stating that the rent was paid “eventually”!   But just how would he feel if the BBC didn’t pay his wages when they were due and got round to paying him “eventually” ? Like him, the Landlord has bills to pay so why is it acceptable?

What has happened here is a breakdown in the relationship between the Tenant and the Landlord and my impression is that if the Tenant had adhered to the obligations of his tenancy, this Landlord would not have been seeking his eviction, why would she? this is true of most eviction situations.  Oh, and just one other small point, this tenant has been evicted twice before, but yet again, this was mentioned as an aside and we didn’t get any information on this.

Francis has been trying to evict the tenant for five months, the court have granted the tenant for an extension to the eviction and this has been granted!  Francis is typical of everyday Landlords, she works full time and rents out one or two properties, she probably can’t afford rent arrears because she will have a mortgage to pay and the legal costs associated with evictions will likely cripple her,  but because she’s a Landlord, she will always be seen as the villain of the piece.

Scotland

The law has changed in Scotland and Section 21 is no longer permitted, but we are told that the new rules offer something for “Landlords too” in an attempt to show that it works both ways; fairness and all that!. Apparently if tenants are three months in arrears, Landords can then get them out ! Could you imagine not paying somebody their wages for three months, or small business’ being unpaid for three months and then having to go through the process of “getting them out”! The BBC presented the Scottish abolition of the Section 21 as a good move, but it is far too early to know this yet and how could they know this in any case? From the Landlords I speak to who have property in Scotland, most of them see this a big mistake and a backward step which will result in a reduction in investment in the Scottish PRS, time will tell but you cannot force Landlords to buy properties, but they can choose to sell!

The Section 21 Notice

In my experience, a Section 21 is nearly always used because the Landlord needs to guarantee possession of their property and does not trust the Courts to give them that guarantee when they use a Section 8 Notice (which is the other option).   Section 21 is normally used for the following reasons;

  • Landlord-Tenant relationship breakdown.
  • Tenant not paying rent on time or not paying the rent at all.
  • Tenant not looking after the property.
  • Tenant wilfully damaging the property.
  • Landlords personal circumstances have changed.
  • Landlord wishes to sell their property (usually accidental Landlords).

What some members of the media and some politicians are implying is that when a tenancy goes wrong, Landords do not need to use the Section 21 Notice because (if there is a fault), they have recourse to the Section 8 Notice. The majority of the Grounds (or faults) for which a Landlord can issue a Section 8 Notice are known as  “Discretionary Drounds”,  which means that the Court has the final say or “discretion” as to whether or not to grant possession of the property to the Landlord (their property by the way!).

Because the Courts do not like making people homeless, they will nearly always use their “discretion” to prevent this from happening so on the whole, they will not evict tenants unless they really have no choice and that would only be because the notice is being issued using one of the very few Mandatory Grounds (more on that later).  But even then, the tenant can frustrate the process and purposely delay the eviction, even when proof exists of their fault.

The very least the Panorama team could have done is explain why Landords often have little choice but to resort to the use of the Section 21 Notice and whilst it is somewhat complicated to explain, the viewer needed to be told that the use of Section 21 is nearly always because Landlords does not trust or have confidence in the Courts to act in their interest, despite the reasons and evidence provided. Using two examples, one of Rent Arrears and one of Anti Social Behaviour (which are the most common grounds for eviction), I will try to explain as simply and succinctly as I can why a Landlord would choose to use a Section 21 notice and not a Section 8 notice .

Rent Arrears

If a Tenant is eight weeks in arrears, the Court must grant possession of a property when a Landlord serves a Section 8 Notice, this is because being eight weeks in arrears comes under the  Mandatory Possession rules.  This “fault” is actually known as a “Ground” and eight weeks in arrears is Ground 8 of Section 8, and is the most common reason why tenants are served with a possession notice. However, if the tenant is less than 8 weeks in arrears, let’s say they are 7 weeks, it is no longer classed as a Mandatory Ground but becomes a Discretionary Ground, which means the Courts have the discretion wether to grant possession of the property to the Landlord or not. Experience shows us that when a tenant gets to this level of arrears, it is highly likely that the relationship with the landlord has already deteriorated beyond being salvaged (tenants don’t return calls, avoid contact with the landlord, ignore the situation etc) and by this point, the landlord no longer trusts the tenant and wants them out. But if you are faced with a situation where the Court will not grant you (the owner of the property) possession because there is no “mandatory reason” to do so, you may be forced into going down the Section 21 route, which would guarantee you the possession you are seeking. In this example, anybody with any amount of intelligence can now see that all of a sudden, this route is no longer a “No Fault” eviction but is a “No Option” eviction. The Landlord does not trust that he will get possession from the Court so he opts for the guaranteed route, and who can blame him?

Anti Social Behaviour

Under Section 8, there are five Mandatory (guaranteed) Conditions under which a landlord can obtain possession where a tenant is guilty of anti-social behaviour;  The tenant, a member of the tenant’s household or a person visiting the property has been –

  1. Convicted of a serious criminal offence and the offence was committed on or after the 20th October 2014.
  2. It has been found by the Court to have breached an anti-social behaviour injunction (obtained under Section 1 of the Anti-Social Behaviour Crime and Policing Act 2014 (ABCPA 2014).
  3. Convicted for a breach of Criminal Behaviour Order obtained under Section 22 of ABCPA 2014.
  4. Convicted of a breach of a notice or order to reduce their noise in relation to the tenant’s property under the Environmental Protection Act 1990.
  5. The tenant’s property has been closed under a closure order obtained under Section 80 of ABCPA 2014 (what used to be known as a crack house order) as a result of anti-social behaviour in or near the property and the total period of closure must be a continuous period of more than 48 hours. This applies whether the closure is under the order itself or under a preceding closure notice which has to be served before the closure order can be made.

That’s all well and good, but the problem with these “Mandatory Grounds” is just how are they enforced if a Landlord does not know whether or not any of these breaches have occurred, or even if the Tenant has a criminal record or has a violent past (or worse) when they are not allowed to do the necessary and important background checks which would reveal this information?  Could you imagine trying to enforce a Ground of which you cannot obtain any evidence? You couldn’t make this up!

Most people would consider Anti Social Behaviour to be bad behaviour!  But all other aspects of Anti Social Behaviour (the ones which you and I would not put up with) are classed as “Discretionary Grounds”, meaning that the Court, (not you or the tenants neighbours) will decide whether or not the tenants behaviour was indeed Anti Social.

So, let’s assume you have a house full of cannabis smoking, loud music playing, property destroying tenants, and to add insult to injury, they’re one month behind with their rent! Of course, they weren’t like this when they took the tenancy, but Landlords are often trusting and naive!  Understandably the Landlord (and the Landlords neighbours) would like the tenants out;  the neighbours are calling the Landlord all the time about the problems, the noise is constant and the street stinks of cannabis, not to mention the swearing and general bad behaviour.  The police won’t help as they say that smoking cannabis for personal use is no longer classed as illegal and noise is not a problem for the Police but a problem to be dealt with by the local council (and we all know how long that takes to sort out). So, if this Landlord serves the Section 8 Notice using the relevant Discretionary Grounds, the Court will make the decision as to whether or not to grant the Landlord possession of their property and they will insist on evidence, so the Landlord would be expected to get witness statements and perhaps even video evidence!

And then there’s the cost to consider; It is the Landlord who has to pay out for any Court Action taken against the tenant and those costs do not come cheap!  Could you imagine a situation where you pay upwards of £1,000 for Court Action only to be told that you cannot have your property back and the tenants simply get a slap on the wrist. You are told to come back if the problem persists, and guess what? – you have to pay again for the privilege!  The Landlord and the neighbours know that their tenant won’t change and that not too far in the future, they will have to go back for another hearing.

But a Landlord could also go down the Section 21 route, and this would guarantee possession of the property, without any further court costs or court visits or without having to gather evidence to prove what everyone already knows. If you were this Landlord, what would you do? You would take the so called “No Fault Route” wouldn’t you? because you have no other reasonable option . but to take the “No Option Eviction”

These are just two examples of the decisions which Landlords have to make every day. I am not saying that the Section 21 route is not abused, it may well be, but to suggest this is happening on an industrial scale and using the scare mongering term of “No Fault Evictions” is simply unfair, unfounded and a the lack of investigation is a dereliction of the duty of a professional journalist. This Panorama”investigation” has left more questions than it has answered. In the interest of fairness and balance, I have tried to do Panoramas job and explain the Landords side, one which seldom is told and is probably more nearer the truth than the one which Panorama put out.

Where will this lead?

We now know that Section 21 is the target of such organisations as Shelter and Generation Rent and they have support of Labour who think that Section 21 should be banned across the UK. The present Government disagree with this, but they are very flakey and they run with the Hare and hunt with the Hounds so you can expect this to change as the political wind changes direction.  And we also know that many of the Labour loath private landlords and view property ownership as theft so you don’t have to be a genius to know what the life of the Private Landlord will be if Labour gain power!

Section 21’s were originally brought in to remove the stall in an under invested and backward rental market and it worked. Lenders started lending, funding the growth of the PRS and we all know that funding is the life line of any business and of all economies. Lenders have a responsibility to their borrowers, not to tenants so outlawing Section 21 is highly likely to send Buy To Let lenders running for cover. A bank cannot possibly lend to a Landlord who cannot regain possession of their property, (and it is very important to remember that it is the Landords property) or whose attempts to regain possession of their property are frustrated at every opportunity by tenants. local authorities, citizens advice and the courts, which in turn is supported by the political elite. Removing Section 21 will put the breaks on landlords investing in this sector and will cause many to leave!

And finally, we know that millions of people have arrived in the UK in the last 15 years and many more are yet to arrive. Just exactly where of how would these people have been housed without the assistance of the PRS, and where will they be housed in future without a strong PRS?. No matter how many promises are made by our politicians, they will never build the amount of housing which this country needs, not now, not ever, so they meddle with the PRS at their peril!