All Change? The ‘immediate’ abolition of ‘no fault’ evictions

What are the implications for Landlords, and the Courts, of Labour’s promise to abolish s21 no fault evictions immediately?

The dust is now settling and, to the surprise of no-one watching the polls since the contest started, Labour is now in power. Within their manifesto, and repeated by senior party figures several times to the press during the campaign, Labour was keen to confirm that section 21 ‘no fault’ evictions would be abolished “immediately”, alongside further slightly more vague commitments to “prevent private renters being exploited and discriminated against, empower them to challenge unreasonable rent increases, and take steps to decisively raise standards, including extending “Awaab’s Law” to the private sector.”

This article focuses on the promised abolition of s21 Housing Act 1988, and what this means for landlords who have, until now, relied on the ‘no fault’ ground when seeking possession. I will also discuss the potential impact of the abolition of s21 upon the court system.

The story so far

It helps to understand the current system, in brief, to understand what the potential impact of abolition will be for landlords and the Court.

Currently, private landlords, including Registered Providers for certain types of tenure, can serve tenants who are on a periodic assured shorthold tenancy (either following a fixed term expiring or on a periodic AST) with two months’ notice in writing that they intend to seek possession. The right to rely on a s21 Notice has been tightened up in recent years to avoid abuse, i.e. the potential for retaliatory evictions, in that it can only be relied upon where landlords can demonstrate that there are no outstanding complaints of disrepair against them and that they provided their tenant with specified documentation ahead of the commencement of the tenancy, including a gas safety certificate, EPC and, for private landlords who are not RPs, the “How to Rent” guidance.

Assuming that all the paperwork is in order, and that the landlord has served the s21 Notice with the requisite notice period, it is then open to the landlord to apply for possession under the ‘accelerated route’ rather than the standard possession route. This is intended to be quicker as, essentially, a Judge will deal with the application on the papers as part of their ‘box work’. If a tenant challenges the application for possession within 14 days of receipt and/or submits a defence there will usually be a hearing to determine if they have a seriously arguable defence but, if not, a possession order will usually be granted upon written request on the papers and then this can be enforced by the landlord applying to the court bailiffs.

In practice, although it can still take several weeks, this tends to be a much quicker process for landlords than the standard route for possession relying on Grounds which will involve at least one hearing where the tenant will have the opportunity to attend Court and confirm if they intend to defend the claim or otherwise.

How immediate is immediate?

Although the abolition of s21 Housing Act 1988 has been promised to take effect “immediately”, in reality any move to effect this will require legislation to be debated and voted through both the House of Commons and the House of Lords before receiving Royal Assent. The Renters Reform Bill got to the second reading in the House of Lords before running out of time after the election was called. Any new move to abolish s21 Housing Act 1988 will involve a new bill being proposed and passed, although one would hope that the previous debates will be taken into account when the new Bill is drafted. As both of the two main parties have confirmed they are committed to abolishing s21 and this was a specific manifesto commitment of Labour, limiting the options for delay in the Lords, one would expect a Bill could be pushed through fairly quickly.

What does this mean for Landlords?

The previously drafted Renters Reform Bill included provision for transitional arrangements for existing tenancies. Within Labour’s manifesto promise there is no detail as to whether a transitional period would be allowed for existing tenancies or whether it would apply to all tenancies from the date the legislation is enacted.

If s21 Housing Act 1988 is abolished, then Landlords will only be able to rely on the Grounds set out in Schedule 2 of the Housing Act 1988 and will only be able to seek possession following service and expiry of a section 8 Notice of Seeking Possession. There already exist a number of mandatory and discretionary Grounds that landlords can rely upon, covering rent arrears, antisocial behaviour, breach of tenancy but also situations where a landlord may want to move back into the property or, for Registered Providers, where they may want to demolish or redevelop a property.

The Renters Reform Bill had proposed a number of new Grounds to cover potential gaps which had been raised by landlords as an area of concern - such as those covering non-engagement with support services for supported housing where assured shorthold tenancies are commonly used by Registered Providers. We will have to see if any new Bill picks up on these proposed Grounds or chooses to ignore them.

Under pressure? You ain’t seen nothing yet!

The justice system is under considerable pressure owing to years of underinvestment. On top of that was the pandemic - which caused backlogs which the civil courts are only just now starting to address. Whilst Labour has promised, within its manifesto, to invest in the criminal courts, there have been no specific pledges relating to the civil courts. Any landlord who has issued a possession claim over the past few years will be more than aware that these proceedings are already subject to considerable delay due to shortages of court staff, Judges and hearing centres.

As discussed above, if the s21 ‘no fault’ ground for possession is abolished, this will mean the accelerated route falls away and every possession claim will then have to be dealt with via a hearing in person rather than on the papers.

Whilst this is desirable in many ways, this will have an inevitable knock-on effect on the already struggling County Courts. Finding the time and space to devote to those additional possession claims which will now need to be heard will be challenging to say the least. Where a District Judge may previously have dealt with 10-15 accelerated possession claims as part of their paperwork in the last hour of their working day sitting at court, there will now need to be time scheduled for possession hearings to be listed for each of those 10-15 cases. If 20 minutes is optimistically allowed for each of those claims, then that 1 hour box work easily becomes another day’s sitting time in court with the additional staffing requirements in terms of listing, ushers needed and the Judges themselves.

The previous paragraph only accounts for the first possession hearing. Assuming tenants defend at least half of those cases, and a trial is necessary, then further hearings will need to be added to the calendar including directions hearings, case management hearings and the final trial which will further add to the strain on the County Courts.

The previous Government had committed to carrying out a consultation into the court system before implementing the ban on s21. If the new Government is not careful to follow these steps and/or to ensure that the County Courts are supported with significant and immediate funding increases and measures to increase capacity, then there is a very real risk that the resultant additional draw on resources will only serve to worsen the already delayed and strained service.

This article, written by Anna Bennett, is one of our ‘All Change’ series analysing the likely impact of Labour’s manifesto commitments, now they’re in power. Visit our All Change article hub to read all available articles.