EVICTION AND THE LAWYER
England’s coronavirus ban on evictions came to an end on May 32, 2021. The Joseph Rowntree Foundation has reported that 400,000 private renters have been served with eviction notices or told to expect them. Eviction notice periods were extended to six months as an emergency measure because of the pandemic, but are now four months. Research carried out by the Foundation has concluded the following:
· Compared with homeowners, private tenants are more than three times as likely to be in arrears of rent or bills.
· Black and minority ethnic households, lower income tenants and those with children had the highest levels of concern.
Generation Rent, an organisation which represents private tenants, described the decision to end the eviction ban as reckless. It could mean that thousands of homeless families needed help from local authorities.
Media reports seem to suggest that eviction is simple and straightforward where private tenants have for example, failed to pay their rent. The reality is more complex. The key legal text is Defending Possession Proceedings, by Jan Luba QC, Nic Madge, Derek McConnell, John Gallagher and Sam Madge-Wyatt, published by the Legal Action Group. This book of 1000 pages is aimed at advisers and lawyers helping those who face possession proceedings. They point out that the relevant law has become more and more complex at a time when legal aid has been drastically restricted.
Part II of the book deals with tenants in the private sector, most of whom are assured shorthold tenants with no security of tenure and, before the pandemic, could be required to leave their homes on two months notice, under section 21 of the Housing Act 1988. If the tenant does not leave at the end of this period, the landlord must start possession proceedings. This is far from automatic. The law is complex and a number of defences may be available. The book explains these in detail. For example:
· A section 21 notice will not be valid if the landlord has failed to comply with the rules related to tenants’ deposits.
· Landlords must not be in breach of prescribed requirements, including the condition of premises, the health and safety of occupiers and the energy performance of premises.
· Failure of the landlord to have provided a gas safety certificate and an energy performance certificate at the time of service of a section 21 notice.
· Retaliatory eviction, where a tenant has made a complaint to the landlord about disrepair or other defects in the rented property.
A key question, rarely posed, is why some individuals should have the power to decide whether other individuals have a home. The answer may be in the complexities of ancient English land law which distinguish between the absolute ownership of property and a mere, temporary, right of occupation of that property. In reality this may mean that families with temporary rights of occupation are subject to the power of absolute owners to deprive them of their homes. There would seem to be no ethical basis to this state of affairs – it is simply a reflection of the power of land ownership in English law.
The squatting of empty properties was previously a tactic used by the homeless to find a roof over their heads. However, section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 effectively criminalised squatting. Again, the overriding power of land ownership is reflected in English law.
An alternative approach, again rarely discussed, followed the Cuban revolution of 1959. Evictions were halted, most rents were reduced and land speculation was strictly controlled. Tenants became homeowners by amortising the purchase price of their homes through rents. Private renting was prohibited. Vacant units confiscated from emigrants were distributed to people in need. By the early 1990s, more than 85 percent of Cuban householders were homeowners. Housing is seen as a right and not a commodity.
In English law, this right is enshrined in the Human Rights Act 1998 which includes Article 8 of the European Convention on Human Rights. Article 8 states, in summary, that everyone has the right to respect for his private and family life, his home and his correspondence. In principle, a human rights defence is available in all possession claims. Again, the law is complex and is fully explained in the Legal Action Group book.