The idea was of course announced in April of this year and covered in our Legal Update of that month (see here). 

The Government plan was to consult on the abolition of the ‘no-fault’ possession right under section 21 of the Housing Act 1988 in both England and Wales.  This week saw the release of the consultation paper in relation to that proposal.

The consultation paper can be found on the www.gov.uk site by clicking here.

The consultation will run for a period of twelve weeks concluding on 19 October 2019.

The purpose of section 21 Housing Act 1988

The press would suggest that the view of the tenant (in relation to the no fault right to possession) is that, landlords use section 21 notices to obtain possession often on a whim and for no apparent reason, removing perfectly good tenants simply because they can.  On the other hand, landlords may proffer the view that, section 21 provides a means to remove, relatively quickly, those tenants who are other than good tenants and that to remove a well behaved tenant without good reason makes no commercial sense.  Whichever view you support, you will likely want to have your views expressed within the consultation.

The purpose of section 21 was to open up the housing rental market to improve the availability of housing stock by using private investors to expand the private sector rental market, and thereby lessen that burden for local authorities.  Whilst it is clear that the Government does not wish to see a return to the rental regimes of pre 1988, it is apparent that more security of tenure for tenants is intended by the new rules.

There are a number of immediately obvious considerations that the final changes to legislation will need to address, of which those at the forefront are as follows:-

1.       Firstly, the current and relatively recently introduced protections for tenants, such as the requirement to provide information relating to renting and the energy efficiency of the property to be let, the gas safety certification, tenancy deposit prescribed information and, of course, the only just introduced prohibition of certain fees under The Tenant Fees Act 2019, are all enforced in whole or in part by sanctions preventing the use of section 21 as a route to obtaining possession.  If the new legislation is to remove section 21 then it will have to introduce other means of ensuring protection for tenants on these issues by making failure to comply with the above requirements suitably unattractive for landlords.

2.       Secondly, if the new legislation is to avoid significantly harming the private rental sector then adequate protection for landlords wishing to manage their portfolio and remain in the rental market are going to be required. 

3.       The proposals suggest reviewing and speeding up the possession process, which realistically currently takes in excess of four months outside of London and significantly longer in London (due mainly to time taken to reach eviction following the obtaining of a possession order).  This is, we would suggest, an essential measure but as we discussed in our Legal Update of April 2019 (see here), there are a number of sizeable hurdles to overcome to enable a genuine speeding up of the possession process.

4.       There is also a planned overhaul of the current ‘fault-based’ grounds for possession under section 8 of the Housing Act 1988.  These proposals are to include a quicker means of obtaining possession and new ‘grounds’ that will enable a landlord to obtain possession for the purposes of selling the property with vacant possession, or in order to house a family member.  Consideration will need to be given to what would constitute adequate evidence to prove such grounds, given the additional burden that that places upon the landlord both in time and cost.

Comment

Clearly, there is a drive for change.  Whether that is real or not, or required or not, we do not comment as strong opinions exist on either side.  However, if change is to occur, and it appears that it will in some form or another, then there is a real need for those advising the Government and drafting the provisions, to ensure that whatever provisions are made effecting of abolition of section 21 and amending/improving the alternative routes to possession, the private rental sector must remain sufficiently attractive for investors.  To do otherwise will see those investors leave the market, resulting in a reduction in available housing stock and thus increased rents.  All of that, of course, will adversely affect the very people the legislation is intended to protect.  

If you wish to have your say within the consultation, then please use the link above to download the Government consultation paper.

We must now watch this space.

For more information, please contact Kevin Lever at Kevin.Lever@kdllaw.com or telephone 01435 897297.

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