Government Consultation – Changes to the Eviction Process

In October 2019 the Government consultation on changes to the eviction process came to an end.

The Government will now review the feedback before a response is given. The two key proposals were:

1. to repeal section 21 of the Housing Act 1988 and thereby end “no-fault” evictions”; and
2. to improve the grounds for possession covered by Schedule 2 of the Housing Act 1988 relied on for section 8 notices.
   
   An overview of the eviction process is set out in further detail on our possession page: 

The end of section 21 evictions

If section 21 of the Housing Act 1988 is repealed, assured shorthold tenancies no longer serve a practical purpose. All future tenancies could therefore be assured, either as fixed-term assured tenancies or contractual periodic assured tenancies.

A tenant under an assured tenancy would not be able to be evicted unless the landlord could provide grounds under Schedule 2 of the Housing Act 1988 or if a break clause had been agreed between the landlord and the tenant.

Improvements to schedule 2 and section 8 evictions

The current grounds for eviction under schedule 2 are:

Mandatory grounds for repossession, meaning the court must grant the possession order if the landlord can prove the grounds to the court.

Discretionary grounds for repossession, meaning the court may grant the possession order if the grounds are proven.

The consultation considered a number of proposals:

1.Including new mandatory grounds for possession under schedule 2:

a.Where the landlord is selling the property;
b.Where one of the tenants has committed domestic abuse;
c.Where on three previous occasions the tenant had built up and then paid off the arrears so that they are just below the level required to trigger Ground 8; and
d.New grounds for agricultural holdings.

Amending the current grounds under schedule 2:

a.Ground 1 – Including where family members of the landlord which to take the property as their home and removing the requirement to serve prior notice on the tenant;
b.Ground 4 – Allowing this to be used by any landlord who lets to students;
c.Ground 5 – Including where the current tenant is a lay person;
d.Ground 8 – Reducing the level of rent arrears required (where rent is paid monthly) to one month’s rent being due at the date of the Hearing;
e.Ground 12 – Issuing government guidance over the use of Ground 12;
f.Ground 14A – Making this ground available to all landlords; and
g.Ground 13 – Including where the tenant obstructs the landlord in carrying out their duties in relation to safety responsibilities e.g. gas checks.

3.By allowing possession proceedings relating to grounds 1- 8 to be dealt with on an accelerated basis without a Hearing similar to the accelerated possession process for section 21 notices.

Comment

The stated reason for the consultation is that the Government considers that the use of section 21 no longer fulfils the basic principles of fairness and transparency. This is because no reason needs to be given for serving a section 21 notice, and there is no avenue of appeal.

Arguably, the frequent use of section 21 notices stems from the uncertainty and risk associated with evictions based upon the grounds specified in schedule 2. It is rare that a landlord would genuinely evict a tenant without any reason and often there is some motivating factor, dispelling the argument that the use of section 21 is arbitrary.

This is of little comfort to a tenant who can be given two months to pack up their home and move, even if they have lived in the property for decades. The inability to challenge the use of section 21 is difficult to see as anything other than a hangover from allowing two parties to negotiate with unequal bargaining power.

Whether or not these changes are implemented, a practical improvement would be for the Government to invest in the Court system which is increasingly overloaded and understaffed. Changes to schedule 2, or even the addition of a new accelerated process, will make little difference if the Court process is measured in months rather than weeks.

Once the Government publishes it response a review of this will be published on our website.This article was written by Oliver-James Topping, Solicitor in the Residential Property Litigation Team at Pinney Talfourd LLP. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2019.