Will the government’s proposals for the private rented sector really bring us a fairer system?
.
.
.
Marc Bloomfield
Description: Housing
The long-awaited white paper, A fairer private rented sector (CP 693), finally arrived on 16 June 2022 – fortuitously, the first day of the LAG Housing Law Conference. Discussions on the reform of the private rented sector were a central theme of the conference, and a session on Housing Act 1988 s21 reform had been scheduled with Liz Davies QC, Baroness Alicia Kennedy from Generation Rent and Kate Bradley from the Greater Manchester Tenants Union and Greater Manchester Law Centre. I am extremely grateful to them for steering their ship around so quickly to deliver a session on the white paper on the second day of the conference. Liz prepared an excellent PowerPoint summary (which she has kindly agreed to share) in which she pulled together the key proposals:
Note: this has been edited for publication.
The white paper sets out a 12-point plan of action:1With relevant detail added from elsewhere in the white paper.
1We will deliver on our levelling up housing mission to halve the number of non-decent rented homes by 2030 and require privately rented homes to meet the Decent Homes Standard for the first time. This will give renters safer, better value homes and remove the blight of poor-quality homes in local communities.
We will legislate to introduce a legally binding Decent Homes Standard in the private rented sector for the first time.
We will complete our review of the Housing Health and Safety Rating System.
2We will accelerate quality improvements in the areas that need it most. We will run pilot schemes with a selection of local councils to explore different ways of enforcing standards and work with landlords to speed up adoption of the Decent Homes Standard.
3We will deliver our manifesto commitment to abolish s21 ‘no fault’ evictions and deliver a simpler, more secure tenancy structure.
We will move all tenants who would previously have had an assured tenancy or assured shorthold tenancy onto a single system of periodic tenancies.
Tenants will need to provide two months’ notice when leaving a tenancy.
Landlords will only be able to evict a tenant in reasonable circumstances, which will be defined in law, supporting tenants to save with fewer unwanted moves.
With a single tenancy structure, both parties will better understand their rights and responsibilities.
Purpose-built student accommodation cannot typically be let to non-students, and we will exempt these properties.
We will provide at least six months’ notice of our first implementation date, after which all new tenancies will be periodic and governed by the new rules. Specific timing will depend on when royal assent is secured.
All existing tenancies will transition to the new system on a second implementation date. We will allow at least 12 months between the first and second dates.
4We will reform grounds for possession to make sure that landlords have effective means to gain possession of their properties when necessary.
We will introduce a new ground for landlords who wish to sell their property and allow landlords and their close family members to move into a rental property. We will not allow the use of these grounds in the first six months of a tenancy.2A new deal for renting: government response (16 June 2022) states: ‘[W]e will not apply prior notice to grounds that are likely to be widely used by landlords, such as selling.’
We will introduce a new mandatory ground for repeated serious arrears. Eviction will be mandatory where a tenant has been in at least two months’ rent arrears three times within the previous three years, regardless of the arrears balance at hearing.
We will increase the notice period for the existing rent arrears eviction ground to four weeks and will retain the mandatory threshold at two months’ arrears at time of serving notice and hearing.3Ground 8.
We recognise that tenants may sometimes breach the relevant thresholds for the mandatory rent arrears grounds4Ground 8. because of the timing of their welfare payments. We will prevent tenants in this scenario from being evicted, provided it is the reason they have exceeded the mandatory rent arrears threshold.
In cases of criminal behaviour or serious antisocial behaviour, we will lower the notice period for the existing mandatory eviction ground and explore whether further guidance would help landlords and tenants to resolve issues at an earlier stage.
We will introduce new, specialist grounds for possession to make sure that those providing supported and temporary accommodation can continue to deliver vital services.
We will also ensure that private registered providers continue to have access to the same range of grounds as private landlords and the agriculture sector can continue to function through grounds to support rural employment.
When landlords pursue possession, they want a reasonable degree of certainty about the outcome. As far as possible, we have defined grounds unambiguously – so landlords can have certainty that the grounds will be met when going to court – and made them mandatory where it is reasonable to award possession.
5We will only allow increases to rent once per year, end the use of rent review clauses, and improve tenants’ ability to challenge excessive rent increases through the First-tier Tribunal to support people to manage their costs and to remain in their homes.
6We will strengthen tenants’ ability to hold their landlord to account and introduce a new single ombudsman that all private landlords must join. We will consider how we can bolster and expand existing rent repayment orders and enable tenants to be repaid rent for non-decent homes.
7We will work with the Ministry of Justice and Her Majesty’s Courts and Tribunals Service to target the areas where there are unacceptable delays in court proceedings. We will also strengthen mediation and alternative dispute resolution to enable landlords and tenants to work together to reduce the risk of issues escalating.
8We will introduce a new Property Portal to make sure that tenants, landlords and local councils have the information they need. The portal will provide a single ‘front door’ for landlords to understand their responsibilities, tenants will be able to access information about their landlord’s compliance, and local councils will have access to better data to crack down on criminal landlords. Subject to consultation with the Information Commissioner’s Office, we also intend to incorporate some of the functionality of the Database of Rogue Landlords, mandating the entry of all eligible landlord offences and making them publicly visible.
9We will strengthen local councils’ enforcement powers and ability to crack down on criminal landlords by seeking to increase investigative powers and strengthening the fine regime for serious offences. We are also exploring a requirement for local councils to report on their housing enforcement activity and want to recognise those local councils that are doing a good job.
10We will legislate to make it illegal for landlords or agents to have blanket bans on renting to families with children or those in receipt of benefits and explore if similar action is needed for other vulnerable groups, such as prison leavers. We will improve support to landlords who let to people on benefits, which will reduce barriers for those on the lowest incomes.
11We will give tenants the right to request a pet in their property, which the landlord must consider and cannot unreasonably refuse. We will also amend the Tenant Fees Act 2019 so that landlords can request that their tenants buy pet insurance.
12We will work with industry experts to monitor the development of innovative market-led solutions to passport deposits.
So, after 34 years, we are finally losing s21. This proposal is very welcome, along with many of the others. The white paper covers a lot of ground, but, as ever, the devil will be in the detail. I have concerns regarding the new nine mandatory grounds for possession. Why would you want to take away a judge’s discretion to decide on all the evidence? What will be the evidential burden? Why not make the new grounds discretionary? I also have concerns about the rent arrears ground: at least two months’ arrears three times in three years, which won’t be hard to reach in the current cost of living crisis. And it fails to understand the complexity of rent arrears that are intertwined with a cluster of other issues including benefit problems, zero-hours contracts, and health and family matters.
It feels very much consumer-driven rather than rights-driven, more dispute resolution with its focus on the ombudsman rather than resolving competing rights in court. And it fails to address the unaffordability of most rented properties, with no rent control provisions. The statement, ‘when landlords pursue possession, they want a reasonable degree of certainty about the outcome’, is the most telling. It suggests that renting is just a transactional relationship, but for tenants it means so much more: a secure, affordable and decent home, something that’s still out of reach for far too many people.
 
1     With relevant detail added from elsewhere in the white paper. »
2     A new deal for renting: government response (16 June 2022) states: ‘[W]e will not apply prior notice to grounds that are likely to be widely used by landlords, such as selling.’ »
3     Ground 8. »
4     Ground 8. »

About the author(s)

Description: Sue James - author
Sue James is CEO of LAG. She was previously director and housing solicitor at Hammersmith & Fulham Law Centre and a founding trustee at Ealing Law...