Renters need more protection than legal technicalities
Two legal cases about private renting have gained a lot of attention recently in the housing press. Both concern the use of possession notices. But what are the implications for renters?
The first is Superstrike Limited vs. Rodrigues, a tenancy deposit case which came before the Court of Appeal last year. Superstrike took a deposit before the tenancy deposit legislation came into effect in April 2007. When the 12 month fixed term contract came to an end in 2008 and became a rolling statutory periodic tenancy, Superstrike failed to protect the deposit. In 2011, when the tenant, Mr Rodrigues, was served with a Section 21 possession notice, he argued his landlord couldn’t evict him because they hadn’t complied with tenancy deposit legislation, as the periodic tenancy had started after the law had come into force in 2007.
The Court of Appeal ruled in favour of Mr Rodrigues. A rolling statutory periodic tenancy was considered to be a new tenancy, not a continuation of a fixed term. The outcome was that, to comply with the legislation, even in cases where a deposit had been legally protected, landlords had to issue the prescribed information to confirm this whenever a new tenancy arose.
Landlords reported this caused a lot of confusion.
The Government’s response was that this wasn’t the intention of the original tenancy deposits legislation, so they’ve tabled an amendment on deposit protection as part of the Deregulation Bill. If the amendment passes, landlords will not need to re-issue the information about deposit protection when a fixed term tenancy becomes a rolling tenancy or is renewed for deposits taken since April 2007. And landlords will be allowed 90 days to protect deposits taken before April 2007.
This amendment in itself will not substantially affect the rights of renters – requiring landlords to re-serve information which has already been given doesn’t give renters any extra protection. But the case is important because, even where a deposit had been protected, it allowed renters to challenge an eviction on the technicality that the landlord had failed to serve the correct information. This didn’t ultimately stop renters being evicted – but it delayed the process while the landlord served the correct information and then reissued the Section 21 notice, giving them more of a chance to find another letting.
The other recent case of interest is Spencer vs. Taylor; another Court of Appeal case concerning the technical details of how a Section 21 eviction notice is served.
The law currently sets out two types of ‘no-fault’ Section 21 notices, one for fixed-term tenancies and one for periodic tenancies.
Under both notices, landlords must give a two month notice period. However, in a periodic tenancy the landlord must also ensure that the notice is dated to expire on the last day of a period of the tenancy. In practice this means that renters are given as a minimum two months’ notice plus however many days or weeks to bring them up to the end of their tenancy period. So, for example, if the rent is normally paid on 30th of each month, if notice is served on 15 June, it notice should be dated to expire on 29th August.
This difference between the two notices is fairly subtle, so landlords often confuse the two – either serving the wrong notice or providing an incorrect expiry date. This allows renters to challenge a Section 21 notice on the basis it’s incorrect.
This is what happened in the case of Ms Taylor, who was in a statutory periodic tenancy after the expiry of a fixed term tenancy. When her landlord served a Section 21 notice, he failed to properly calculate the correct last day of the tenancy period. The court ruled that the notice was in fact valid because the tenancy had at some stage been a fixed term, and so it only needed to be two calendar months long.
Much to the surprise of housing lawyers, the Supreme Court refused Ms Taylor permission to appeal this decision, so it stands. Landlords can now use either type of Section 21 notice to evict tenants who are in a statutory periodic tenancy. Both only give renters two months to find a new home. Again, this case removes the scope to challenge some Section 21 notice on a technicality. That landlords might confuse the two notices and serve them incorrectly gave renters some limited ability to challenge a possession notice and remain in their homes for a bit longer. When you’ve got to uproot your family, possibly after living in your home for a number of years, and find somewhere new to live in a hurry, even a few weeks’ more notice can make a difference.
What are the implications for renters?
The key implication is that the already narrow scope that renters had to challenge Section 21 no-fault eviction notices has been narrowed further – as landlords are now more likely to get the notices right first time. This matters because renters have so few rights to challenge a no-fault eviction.
Both these cases highlight the very fragile position of renters, and the lack of legal protection to stop them being evicted from their homes at very little notice. With 9 million people now renting from a private landlord – 1.3m of them families with children – it’s clear that renters who pay their rent and act responsibly urgently need more protection from losing their home with just two months’ notice.