Sol Quinn, a housing activist and rs21 member, considers recent government proposals to overhaul the regulation of private renting in England and Wales, and shows why they fall far short of what is required.
ACORN contingent at June 18 TUC demonstration – picture by Charlie Hore
On 16 June 2022, the Department of Levelling Up, Housing and Communities (DLHC) published the Renters Reform White Paper, detailing a new bill to introduce significant reforms to the private rental sector. This comes after years of promises from the government to scrap Section 21, or ‘no fault’, evictions, and years of delays. Renters’ organisations such as ACORN, London Renters Union and Living Rent have been fighting to scrap Section 21 for a long time, and the announcement has raised campaigners’ hopes. Given the private rental sector has more than doubled in the last decade and an estimated 19% of all dwellings in England are privately rented (4.8 million), the changes will affect large numbers of people. In this article, we’ll take a look at the proposals so far and evaluate them in the context of 2022’s housing sector.
Abolition of Section 21
Most tenants in the private sector (and some with social landlords) currently live in a type of tenancy called an Assured Shorthold Tenancy (AST). These were created by Thatcher in the 1980s, and come with very few tenants’ rights. During an AST, the landlord can regain possession of the property by serving either a Section 21 or Section 8 notice. Section 21 does not require landlords to provide any justification for the eviction, while Section 8 notices can only be served on specific grounds. Some Section 8 grounds are mandatory, meaning that if a landlord starts legal proceedings to evict a tenant, a court must grant the eviction if the grounds are proven. This includes grounds such as two months of rent arrears, or a conviction for serious Anti-Social Behaviour. Other grounds are discretionary, which means a court can decide if the claim is reasonable.
The existence of mandatory grounds means that in many cases, no matter how unjust or unreasonable an eviction is, even if it’s going to make the tenants homeless, or exacerbate a health problem, the courts can simply not help a tenant if the correct paperwork has been served. This makes going to a lawyer to uphold your ‘rights’ impossible for many people facing eviction: in many cases, you just don’t have them.
Under the proposed system, landlords could not use Section 21: in other words, they could only evict the tenant provided they had specific grounds to do so. However, the proposals add in a whole new set of mandatory grounds, such as when a landlord wants to move family members into the property, or when they plan to sell the house. There are also ways for landlords to get round eviction rules by pressuring tenants out. For example, there is little to stop landlords applying unaffordable rent rises: landlords would be allowed to increase the rent once a year using a Section 13 notice.
Tenants can challenge formal rent increases at a rent tribunal, but this process is little-known and also carries risks: the tribunal only needs to consider whether a rent is ‘reasonable’ for the market rent of an area, so where rents are extremely high, a ‘reasonable’ market rent may be extortionate and unaffordable for its tenant. In those cases, the rent tribunal can even raise the rent on a landlord’s behalf. The new proposals suggest the tribunal would be changed so that it can no longer increase the rent beyond what the landlord has asked for – but the process is still very bureaucratic, and it will still take months, with the risk of the rent being put up to unaffordable levels anyway.
What does this mean for tenants?
The abolition of Section 21 is very much welcome and long overdue. Britain is well behind many other countries on tenants rights – tenancies are short and insecure, the most common length of tenure is just 6-12 months, compared to 4-6 years in Italy. Allowing tenants to be evicted for no reason puts tenants completely at the mercy of their landlord. Complaining about repairs, unnecessary visits, and landlord behaviour can be met with a retaliatory eviction without justification.
While Section 21 would be banned, the particularly abusive practice of evicting just to re-let the property might still be possible under the proposed changes. The White Paper does not propose any mechanisms for limiting how much private landlords can increase rent (such as binding rent increases to the consumer price index, as is the case for social housing). How easily landlords can evict will also depend on how much proof a landlord needs to claim they are moving in or selling up, and whether they can get away with lying.
Furthermore, much of the harm of Section 21 comes from its more ‘legitimate’ uses. The end of an AST is the biggest cause of homelessness, and in most of these cases the landlord ended the tenancy in order to sell or re-let the property. Selling would still be allowed under the new proposals. While the phrase ‘no-fault evictions’ is synonymous with Section 21, there are already Section 8 grounds which do not require any fault on the part of the tenant, and the new grounds would massively extend them.
The proposal is thus not the ‘end of no-fault evictions’, as some headlines might suggest. Protecting only the first six months of a tenancy from the ‘moving’ and ‘selling’ grounds is also completely inadequate to ensure that tenants can consider their rental property their home. Requiring just two months’ notice from the landlord continues to leave tenants far behind countries such as Italy and France, where notice periods are as long as 6 months.
Other Section 8 changes
The government’s proposals would also strengthen eviction grounds for rent arrears and Anti-Social Behaviour. Notice periods for evictions on criminal and severe Anti-Social Behaviour grounds would be reduced to two weeks down from a month, and landlords would be able to make a claim to the court immediately.
The serious rent arrears ground currently requires that a tenant has been in arrears for two months at the time that the notice is served and at the time of the court hearing. Currently, tenants who are given Section 8 notices for serious rent arrears can pay off their arrears to less than two months’ worth before the court date to prevent eviction.
The White Paper proposes a new repeated rent arrears ground which would apply to tenants who have been in 2 months of arrears at least three times in the past three years regardless of their rent arrears at the court date. While it does propose increasing the notice period to four weeks to give tenants more time to pay off their arrears, the new repeated arrears ground makes this dangerous for tenants, as it can only be done twice every three years, putting financially precarious tenants with irregular incomes more at risk. This ground would also be mandatory, giving the courts no discretion over whether its use is appropriate.
Other changes to Section 8 include expanding which grounds are mandatory, such as in the case that the tenant was employed by the landlord but the employment has ended. The practice of preventing courts from considering whether an eviction is reasonable dramatically limits the scope of the tenant to oppose the eviction and completely ignores the situation of the tenant regardless of circumstances outside of their control.
Better reforms than this are not only possible, but are happening in Britain: the Scottish government recently passed the Coronavirus (Recovery and Reform) (Scotland) Bill, making all grounds for eviction discretionary. This was originally introduced as a temporary measure during the 2020 lockdowns, but it has now been made permanent, demonstrating that abolishing Section 21 does not require introducing so many more mandatory grounds.
Finally, it is galling to see in the government response to the White Paper that ‘[t]he possession process will be streamlined so that only deposit protection will have to be demonstrated when making a claim for possession’. Currently, to go ahead with a Section 21 eviction the landlord must have also provided an energy performance certificate and a ‘How-to-Rent’ guide, which has often allowed tenants to delay their evictions and buy valuable time to appeal or find a new home.
The White Paper also has many proposals to hold landlords to account, such as increasing some existing powers of local councils, and introducing a ‘Property Portal’, and new Housing Ombudsman for private landlords. The Ombudsman would allow tenants to pursue compensation for breach of tenancy, making it easier for tenants to raise disputes with their landlord, replicating existing redress schemes for dealing with lettings agents that currently do not apply to the landlords themselves.
The proposed Property Portal is described as a ‘single front door’ to help landlords understand and demonstrate compliance with their legal requirements. Landlords would have to register their properties on the portal, where local authorities could enforce legal requirements, such as the new proposed Decent Homes Standard. Tenants would be able to access information about their landlord, which could be a valuable tool during disputes.
However, this falls short of a public landlord register, which would empower local residents and tenants groups to gather information on and take action against local landlords. This portal would effectively reproduce the local selective licensing schemes that have been introduced by various local authorities.These have been shown to lead to significant improvements in housing conditions in the licensed areas, but they are only as good as their enforcement by overstretched councils.
While enforcing better housing standards is desperately needed, the vision for the Property Portal (and other local council enforcement mechanisms) is also to force landlords to police ‘anti-social behaviour’. The White Paper specifically highlights Nottingham as a case study of where selective licensing had been used to work with landlords on hundreds of anti-social behaviour referrals. In a government research briefing into the history of selective licensing, one of the major achievements of these programs was described as compelling landlords to draw up tenancy agreements which ‘can be used to deal with persistent ASB [Anti-Social Behaviour] by threatening eviction with little prospect of finding decent alternative accommodation locally’. Will landlords be tempted to use trumped-up anti-social behaviour accusations to speed up evictions?
In the case of local selective licensing, councils have had some discretion as to what conditions apply. In some instances, such as during the selective licensing consultation in Oxford, this has allowed groups like ACORN to successfully campaign to have anti-social behaviour conditions dropped from selective licensing proposals. Organisations at the national level should follow this example and push for this aspect of the Property Portal to be dropped too.
Along with the racist and discriminatory Right to Rent rules which force landlords to carry out immigration checks, anti-social behaviour provisions highlight the thoroughly reactionary nature of the Tories’ attitude towards housing as a mechanism to police the lives of tenants.
Other Rights for Tenants
Under the proposals, tent increases would require a notice of two months rather than one, and rent review clauses would be banned. Discrimination against tenants and families on benefits would be outlawed. However, this only means so much when there is so much competition for housing that landlords are already in a position to pick and choose their tenants.
A Decent Homes Standard would be introduced, which could be enforced through the Property Portal and local council powers. These standards would cover serious health hazards and disrepair and give tenants the right to a warm and dry home with adequate kitchen and bathroom facilities. That such basic standards still need to be introduced shows how woefully unregulated the private rental sector is.
Tenants will also have the right to request a pet, which the landlord can only object to on reasonable grounds. However, the Tenant Fees Act would be amended to allow landlords to insist on pet insurance.
Two prominent proposals from the 2019 Queen’s speech have been dropped: the introduction of a lifetime deposit, and the professionalisation of lettings agents. The White Paper claims it is holding off on a lifetime deposit scheme to monitor the effectiveness of market-based solutions. This is extremely disappointing. Requiring private renters to fork out for a second deposit before returning the first is a huge financial burden that makes moving house prohibitively expensive, especially for the majority of private renters who do not have any savings. Why the White Paper replaces the pledge for regulation of lettings agents with an empty commitment to ‘professionalism and standards among letting agents and property agents’ is simply unexplained. This general inaction over issues the government is fully aware of is incredibly frustrating to private tenants.
At the time of writing, with the direction of the Tory Party in question since Boris Johnson’s resignation, as well as the resignation of most DLHC ministers, the future of the proposals looks uncertain. These reforms have been many years in the making; two Queen’s Speeches and a White Paper will make it embarrassing but not impossible for the government to back down. The Big Issue estimates that there have been 230,000 Section 21 notices given out since it was first announced it would be scrapped, demonstrating the urgency of this legislation. Attempts to delay or back down from necessary reforms would be a huge setback for tenants.
The Renters Reform Bill in Context
It is worth briefly considering the context of the White Paper here, because the attention given to private as well as social renting by the government, appears as something of a diversion from the open ideological warfare against tenants by successive Tory and coalition governments.
Have the Tories ditched their commitment to Thatcher’s ‘property-owning democracy’? Hardly. As Theresa May put it at the 2018 Tory party conference, ‘we cannot make the case for capitalism if ordinary working people have no chance of owning capital’. While ignoring or antagonising the private and social rental sector and driving up housing prices with schemes like Buy-to-Rent may have pleased their predominantly homeowning voter base in the short term, it has only worsened the housing crisis. It has also failed to reduce falling homeownership rates, which consistently decreased in every year of the Cameron government.
Rising house prices, rising rents, deregulation of buy-to-let mortgages and falling wages undermine the possibility of a growing home-owning population – and yet they are at the heart of a modern Tory-envisioned economy. This is a contradiction their reforms offer no way to solve – and one that drives a situation in which working class people increasingly rent for more or all of their lives, as well as generating an upsurge in radicalism in renters’ unions.
One of the sources of hope for tenants over the last few years has been the growth in housing campaigning and the founding of several tenants’ and community unions: ACORN, London Renters’ Union, Living Rent, CATU in Ireland and local unions like Greater Manchester Tenants Union. This emergent housing movement is no doubt a source of pressure on the government to improve private and social renting conditions, both through its official campaigning through the Renters Reform Coalition, but perhaps more importantly by bypassing political lobbying and demonstrating the power of organised tenants and residents to take direct action against landlords, estate agents, councils, and private companies.
These struggles show that working class tenants are not merely at the mercy of government policies. We have the agency to leverage our position to improve our living conditions, and even disrupt rental profiteering along the way. Taking part in collective struggle against landlords can politicise a key relation of power in capitalism, opening the way for radical struggles opposing the commodification of housing, fighting rising rents, pushing for more council housing and envisioning entirely different models of housing provision. In these ways, the tenants’ struggles that have emerged from the immediate conditions of an increasingly renting working class can form part of the fight against capitalism today.