S21 ban: Should straightforward possession cases be decided out of court?

by Readers Question

10:38 AM, 29th April 2019
About 4 months ago

S21 ban: Should straightforward possession cases be decided out of court?

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S21 ban: Should straightforward possession cases be decided out of court?

As we are all aware, the government intends to remove the option for landlords to use the no fault eviction notice under Section 21 of the Housing Act 1988, which with our current system would leave only grounds under Section 8, similar to the system recently introduced in Scotland.

Unlike Scotland, however, there is currently no plan to introduce a specialist housing court as such, only to add two “no fault” grounds – landlord needs to sell property and tenant or a member of their family needs to move into the property themselves (my understanding is they won’t need to have lived there before).

The government is set to announce its consultation soon.

However, as many of us know only too well, before a government body announces a consultation, the issue has already been decided, so I don’t believe we will persuade them to change their mind on the broader issue, but I do believe we may be able to persuade them to give us something that is as good as or even better than Section 21, while still being fair to tenants.

Dr David Smith believes that while government are committed to abolishing Section 21, they are prepared to take on board other proposals to reform the possession process, even reforming Section 8 completely. A webinar he took part in with Tessa Shepperson earlier in the week can be heard here and there’s a note of the main points.

I believe an alternative to Section 21 and reform in general could be achieved by making the new grounds and other more straightforward grounds accelerated (meaning it’s normally decided without a hearing), including the existing Ground 8 for arrears, provided the evidence is clear cut and the tenant is unable to refute it.

Moreover, instead of such cases being decided by random district judges who often have no knowledge of housing law, why not use trained case officers to decide on straightforward possession claims? There is at least one other example of case officers deciding on important legal property matters in another government agency; Land Registry uses highly trained case officers to determine legal title to land (with the option to refer cases to inhouse lawyers where necessary) and has done so throughout its long history.

Using trained case officers would be much more efficient and cost effective, not to mention fairer both to claimants and defendants, than the present system where cases are being decided by people who, though highly qualified and competent in other aspects of law, know absolutely nothing about the finer details of possession legislation.

These are just a few of many examples of where judges’ lack of knowledge has resulted in possession cases being thrown out for no good reason:-

• A judge took one look at the perfectly valid Form 3 Section 8 notice the landlord had served on the tenant, and immediately dismissed the claim on the basis the notice was invalid because it referred to agricultural occupancy.

• A Section 8 was thrown out because a Section 21 notice was not served at the same time. Section 8 and Section 21 are completely separate from each other and one does not require service of the other. A housing barrister checked the paperwork afterwards and found everything in order.

• Another example was where a Section 8 was thrown out because the expiry date was not the last day of a tenancy period (this is only applicable to Section 21 notices, and was in fact changed to allow just two straight months under the Deregulation Act 2015).

• Yet another: an overseas landlord instructed a fully qualified and regulated solicitor to attend his Section 8 hearing in his absence, and the solicitor produced his client’s instruction, but the case was still thrown out by the judge. Solicitors and barristers have a right of audience to attend court in their client’s place.

Unsurprisingly, there is a total lack of morale amongst district judges at the moment…

Good tenants would benefit as a more efficient possession system would give existing landlords more confidence to remain in the housing market and encourage responsible new ones to join, meaning less depletion of housing stock, which we all know is already in short supply.

If the abolition of Section 21 goes ahead without being replaced with another viable means of obtaining accelerated possession where appropriate, it goes without saying that housing stock for middle and lower income groups who need to rent will decline further.

In addition to the new grounds, and a new form of accelerated possession, there must also be a option for tenancies to have an end date where there is a good reason to do so; for example when letting to students, and a ground for possession where the tenant doesn’t leave at the end.

This is one failing under the new Scottish Private Residential Tenancy system. Another is the insistence that every case is given a whole half day’s hearing – a laudable aim in theory but not in practice. The Scottish Housing Tribunal currently has a massive backlog of cases – exactly why straightforward cases need to be kept out of court and decided without a hearing.

I would appreciate comments and feedback from anyone (in any capacity) with experience of the current possession system – especially if you had to attend a hearing; for example, was the judge knowledgeable and did you believe you had a fair hearing, or not…. I would also particularly appreciate comments from any lawyers in housing law practice.

Thank you for your time.



Carol McEvoy

10:45 AM, 30th April 2019
About 4 months ago

Reply to the comment left by Ian Narbeth at 30/04/2019 - 10:23
Goodness Ian, you've been having a difficult time of late, sorry to hear that. But yes, none of these problems are illegal but massively disruptive in a shared house and the government is saying that existing laws will deal with problem tenants. That is wrong. Can you imagine what the police would say if you reported frequent thefts of half a pint of milk from a fridge that has no lock on it? You are right, HMOs are a special case, as are student lets. This government unfortunately has a habit of announcing legislative changes without proper consultation and without thinking through the consequences properly.

Ian Narbeth

11:00 AM, 30th April 2019
About 4 months ago

I will make some predictions. Despite the Government saying they will speed up the court process, they will abolish section 21 before an improved system is shown to be operating effectively. More landlords will use section 8 and the courts will get clogged up. Backlogs of cases will increase. The accidental landlords will pull out of the market. Rents will go up (as supply reduces and demand increases) and it will be a "conservative" government that introduces rent controls.


11:48 AM, 30th April 2019
About 4 months ago

Reply to the comment left by Lindsay Keith at 30/04/2019 - 09:34
Very good thought. I will certainly be looking how I can achieve something like this. However I suspect that no issuing of notices will be allowed in the first 6 months to protect the tenant from be coerced into an end date and effectively bypassing the indefinite term that the tenant will be entitled to. The term controlled by the tenant with the landlord having no say! This is a nightmare for the student market.

My other conclusion is that if control of the tenancy term is removed from the landlord and the student can willy-nilly issue a termination any time then this will lead to voids. What will be my response? Increase the rent to cover the costs.

Ian Narbeth

12:17 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Lindsay Keith at 30/04/2019 - 09:34
Hi Lindsay, no you can't get round the law that way. It is always a problem with students, even with s21, that if they don't vacate, the landlord needs a court order to evict. In practice, when we let to students we had no problems because (a) they had found other accommodation and/or (b) the new tenants were friends of the outgoing ones.

Two suggested ways to discourage over-stayers: 1. Ensure students are jointly and severally liable for the whole rent so if one or two out of five stay they pay full rent. 2. Grant a longer lease with a break clause that the tenants have to operate giving, say, three months' notice to leave. Make the rent after the break date substantially higher. If the tenants do not exercise the break you have advance notice and in that case (or if serve the break notice but then do not leave) they are liable for another 12 months at a higher rent. Arguably they are liable for double that rent for not vacating after giving notice to quit.

Mandy Thomson

13:29 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Ian Narbeth at 30/04/2019 - 12:17
Hi Ian - instead of trying to incorporate NTQ into tenancy agreement, what is your opinion of asking (not demanding) tenant to sign post dated NTQ at start of tenancy (though I can see a tenant claiming coercion)...

Yvonne Francis

15:01 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Dr Rosalind Beck at 30/04/2019 - 08:17Correct me if I am wrong Ross, but if section 21 is abolished then surly a fixed term period is not also abolished where neither the tenant or the landlord can give notice? If this is the case then no student could give notice ‘willy-nilly’. I believe a fixed term can be twelve months?
A greater problem is students staying on. Ian gives good advice when he mentions jointly and severally liable leases. I don’t have provision for section 21 in my student tenancies. I have let for 40 years and have never needed it. My houses are large, so the possibility of every one staying on, on a jointly and severally liable lease, is small. Added to which, I mostly let to friends of previous tenants at the same college. I once let for 20 years non-stop, to the same college. Blocking the access of students they know would not be a comfortable situation!
My greatest worry is, if we have three year leases. I could never rent, as I do, in November for the following summer. If notice was given in mid to late summer the likelihood of finding students to take their place in the summer would be very difficult indeed. The student market would be just a no-no.

Dr Rosalind Beck

15:10 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Yvonne Francis at 30/04/2019 - 15:01
Hi Yvonne. Judging from previous proposals on the 3-year tenancies - and these have been eclipsed by the proposed abolition of Section 21 - it would be the case that landlords could not give notice, but tenants could whenever they wanted to - whether they had to give one, two or three-month notices. So even if it were three months, they could give notice in January for April and still screw up student lets as I suggested.

Mandy Thomson

18:09 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Dr Rosalind Beck at 30/04/2019 - 15:10
This is the case with the Scottish PRT - LL must use grounds but T can give 28 days notice at any point. Where joint tenants, one T can no longer solely end tenancy without consent of the joint tenants.

Yvonne Francis

19:16 PM, 30th April 2019
About 4 months ago

Reply to the comment left by Dr Rosalind Beck at 30/04/2019 - 15:10
I just do not understand why abolishing section 21 abolishes any fixed period of tenancy, and what do you mean by section 21 'eclipsing' the three year tenancy. Have you any useful links to what you seem to be saying.

It is very clear to me that tenancies at the moment have a period where neither side can give notice. Section 21, I presume can be used by landlords after that fixed period, and the change would be that landlords after that period could no longer be able to end a tenancy under 'no fault' or whatever, except on certain very restrictive conditions.

However I realise in three year tenancies the tenant can at any time give notice, and not the landlord, except on restrictive conditions. Are you not trying to overlap the two? They are only looking to abolish section 21 and not bring in three year tenancies yet.

Mandy, in Scotland where they do have three year tenancies student letting is all over except for the shouting!

Mandy Thomson

6:45 AM, 1st May 2019
About 4 months ago

The Scottish PRT is an open ended tenancy, meaning the landlord can only end it using grounds.

For information, the model PRT can be downloaded here: https://www.gov.scot/publications/scottish-government-model-private-residential-tenancy-agreement/

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