Authors:Marina Sergides and Simon Mullings
Last updated:2023-09-18
“Much of modern housing law is built on the instability of naming things.”
Marc Bloomfield
Description: HLPA
Following the March-to-September-2020 stay on proceedings, possession cases have been listed for hearing again, albeit in much lower numbers. Attention has turned to why there has been a low take-up of free legal advice delivered under a reconfigured housing possession court duty advice scheme. Chief among the many theories is the idea that the ‘eviction ban’ caused tenants to believe they were entirely protected from landlords seeking possession of their homes.
Housing lawyers have been the first to pipe up to explain that the regulations which constituted the ‘eviction ban’1The Public Health (Coronavirus) (Protection from Eviction) (England) (No 2) Regulations 2021 SI No 164 and the Public Health (Protection from Eviction) (No 2) (Wales) (Coronavirus) Regulations 2021 SI No 325 (W 84) were the last iterations. simply prohibited the enforcement of most possession orders; they did not prevent any of the steps leading up to and including a possession order. Nevertheless, it does seem likely that many tenants, being aware of the ‘eviction ban’, inferred that they were safe from the actions of their landlords – not an unreasonable position to take if you are not a housing lawyer.
It is an example of a longstanding problem in the nomenclature of housing law. The word ‘eviction’ is widely used to describe the whole process of a landlord seeking possession from start to finish, as well as to describe the enforcement of a possession order. Housing lawyers are well used to new clients coming for advice because they have received an ‘eviction notice’. In practice, this could mean a notice given to them by their landlord well prior to any claim being issued. While early advice is always good, that kind of notice is not usually urgent. However, the ‘eviction notice’ could be notice of the imminent arrival of court bailiffs or High Court enforcement officers to remove the client and their family from their home – potentially a matter of screaming urgency. These are very different ‘eviction notices’, both in fact and law.
Those who have studied law (even if they have made the baffling decision not to specialise in housing) know that much of modern housing law is built on the instability of naming things. They recall Lord Templeman unearthing the problem in Street v Mountford [1985] AC 809:
The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.
While the term ‘eviction ban’ was not of the government’s making, it sits alongside many other examples of the problematic nomenclature of housing law. If, for example, you want to know what a notice to quit looks like, you need to look at the Protection from Eviction Act 1977. You can start to see why there might be conflation between different kinds of ‘eviction notice’.
It used to be that if you were dealing with a notice requiring possession (or NRP), you knew to consult Housing Act 1988 s21, and if you were referring to a notice of seeking possession (or NOSP), you had to examine Housing Act 1985 s83 or Housing Act 1988 s8. The former refers to ‘no fault’ possession proceedings; the latter to possession proceedings based on statutory grounds. These are important distinctions.
This partly informal terminology of NRPs and NOSPs was undone when the Deregulation Act 2015 came into force. It prescribed the form of notices served under s21, and subsequent regulations named them notices of seeking possession. The term ‘notice of seeking possession’ now formally refers to both kinds of notices.
But the problem is not confined to notices. One of the tasks of the aspiring housing lawyer is to learn that when a ‘suspended possession order’ is made, the possession order is not suspended. Enforcement of the possession order is suspended. Is this just pedantry? Well, if it is, then it is pedantry that troubled lawyers and the courts for a good many years in relation to the ‘tolerated trespasser’ cases, which were only (mostly) resolved by the Housing and Regeneration Act 2008.
Moreover, the term ‘trespasser’ remains ambiguous enough still to cause difficulties. There is a distinction between the trespasser who has never had permission to enter the land (colloquially, a squatter) and the person who entered with permission that has now come to an end. Just one of the reasons that this is important is that squatter trespasser cases were exempted from the ‘eviction ban’ and so a squatter could be evicted in the relevant period. That is not a theoretical concern. We worked on a case where we had to warn off the reputable solicitors of a property guardian agency and the High Court enforcement officers they had engaged, from unlawfully enforcing a possession order because neither had understood that our client was the ‘non-squatter’ variety of trespasser and was therefore protected by the ‘eviction ban’.
Many note the irony that while the legal profession has moved away from the use of Latin so that the law is more accessible, housing law has become increasingly byzantine in its complexity. As such, understanding and accessing the law effectively is often beyond the reach of not just the public but even lawyers who do not specialise in housing.
While the government interminably ponders its long-promised Renters’ Reform Bill, it would do well to devote time to developing within the legislation a precise and unambiguous lexicon that landlords, tenants and the courts can have confidence in.
1     The Public Health (Coronavirus) (Protection from Eviction) (England) (No 2) Regulations 2021 SI No 164 and the Public Health (Protection from Eviction) (No 2) (Wales) (Coronavirus) Regulations 2021 SI No 325 (W 84) were the last iterations. »