'Prepare for retaliatory eviction disputes' urges legal expert

A leading legal expert specialising in the private rental market says the sector should set up basic procedures to protect against accusations of retaliatory evictions.

Danielle Hughes, a solicitor at Kirwans law firm, says landlords and those acting on their behalf leave themselves open to legal claims of retaliatory eviction and property disrepair by failing to put clear processes in place to deal with tenant issues.

The introduction of laws against retaliatory evictions – in which landlords are accused of evicting a tenant solely because they have made a complaint about the condition of the property – were brought in as part of the Deregulation Act 2015. 

The laws currently only apply to assured shorthold tenancy agreements entered since October 1 2015, but will apply to all ASTs from October 1 2018.

Hughes says landlords are now at increased risk of seeing their claims for possession defeated in court as tenants gain a greater understanding of the new retaliation eviction legal defence.

“Landlords may be shocked to discover that tenants could potentially successfully fight a claim for possession based on what has until recently been known as the “non-fault” eviction process. This defence can not only invalidate a section 21 Housing Act notice and lead to the judge striking out a claim, but can also prevent a new section 21 notice being served for six months” she says.

“There is a particularly strong chance of this happening in cases where landlords have failed to deal effectively with complaints and have had an improvement notice or an emergency remedial action notice served on them by the local authority” Hughes adds.

She is urging landlords to actively encourage tenants to report any problems with the property to them in writing at the earliest opportunity to avoid the problem escalating to the point where the local authority becomes involved.

“The law sets out that landlords must provide an “adequate response” to complaints within 14 days of receipt. The belt and braces approach is to inspect the property regularly and undertake any work required within a reasonable timeframe, depending on the works required” she says.

“Keeping properties in good repair is not only preferential, it’s also essential to avoid other legal action being taken, such as housing disrepair claims, a hazard notice being served by the local council, and investigations into a breach of licence conditions, with the latter two carrying risk of criminal sanctions.”

There are cases in which landlords carrying out genuine evictions will be legally protected, including situations where the tenant has caused the disrepair, if the property is genuinely for sale on the open market (not to family, friends or business partners), and if at the date of the section 21 notice, the mortgage lender requires vacant possession to sell the property.

"However, it goes without saying that the best approach is for landlords to be proactive in managing their property to ensure they’re not accused of a retaliation eviction in the first place.”