PBA student essay competition: how the proposal to abolish no-fault evictions affects landlords and tenants

In the 2024 Property Bar Association student essay competition, entrants were set the following question: “Does the proposal to abolish no-fault evictions under section 21 of the Housing Act 1988 strike the right balance between landlords and tenants?” First prize of £1,000, a hardback copy of Megarry and Wade: The Law of Real Property and publication in EG went to Samuel Lane of City, University of London. The final round judges (Tiffany Scott KC, chair of the PBA, and Philip Rainey KC, vice chair) praised it as “…a balanced critique… exploring the merits and demerits of the proposals by reference to the broad aims behind the Renters Reform Bill”.  They added: “The essay was well-researched and impressive in the detail, while retaining a coherent analysis.” Second prize (£500 and a copy of Megarry & Wade) went to Kevin Khoo of the University of Cambridge. Third prize (£250 and a copy of Megarry & Wade) went to Jack Sheard of City, University of London. The conflicting interests of landlords and tenants render it difficult – if not impossible – to draft new legislation governing evictions to both parties’ satisfaction. In broad terms, tenants desire greater protections, while landlords have been reluctant for tenants to have security of tenure beyond the contractual term of the lease. Section 21 of the Housing Act 1988, which enables landlords to obtain an order for possession against assured shorthold tenants without having to establish fault, plainly prioritises landlords’ interests. As Lord Neuberger and Lady Hale observed in McDonald v McDonald [2016] UKSC 28; [2016] PLSCS 169, it reflects a clear policy decision that “private landlords letting property under an assured shorthold tenancy should have a degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property”. Accordingly, it is perhaps unsurprising that these no-fault evictions have been controversial for some time; in 2018, several tenant organisations launched a campaign to “end unfair evictions”, and circulated a petition which received more than 50,000 signatures. Following this furore, and after a consultation process, Theresa May proposed to repeal section 21, and both the Conservative and Labour Parties’ 2019 manifestoes promised to abolish no-fault evictions. This ultimately led to the publication of a white paper in 2022 and the introduction of the Renters (Reform) Bill to parliament in 2023. In brief, the government proposes to abolish section 21 evictions, which would leave landlords only able to evict tenants by using section 8 of the Housing Act 1988, and the grounds of possession set out in an amended Schedule 2. Although the explanatory notes for the Bill profess that the government intends to “provide balance between the interests of landlords and tenants”, it is evident that the present proposals fail to achieve that balance. Examining the proposals At first glance, the proposed repeal of section 21 should be welcomed. First, the abolition of no-fault evictions should assuage tenants’ worries about the prospect of being evicted without any fault on their part; the campaign group Generation Rent has reported that this practice currently engenders “constant anxiety and insecurity” among renters. Secondly, it should empower tenants to complain about the repair of their homes, by removing landlords’ opportunities to use section 21 in a “retaliatory” fashion. According to the housing charity Shelter, around 213,000 private renters were served with an eviction notice in 2013-14 following a complaint to their landlord, letting agent, or council “about a problem that wasn’t their responsibility”, and many tenants consequently felt too scared of losing their home to report such concerns. Moreover, while landlord organisations have claimed that abolishing such evictions might lead to their members withdrawing their homes from the rental market, and a corresponding lack of supply, this seems unlikely. In Scotland, the private rental sector grew more rapidly than England’s after the effective banning of no-fault evictions in December 2017, despite having followed similar trajectories beforehand. However, the Renters (Reform) Bill is far from a panacea for tenants. In particular, the proposed “strengthening” of the grounds under which landlords can repossess dwellings threatens to undermine the government’s attempts to abolish no-fault evictions. Most notably, the Bill provides that landlords may evict a tenant after six months of an assured tenancy if they require the dwelling as the principal residence for themselves or a family member, or if they wish to sell it. While it is proper to allow landlords to secure possession for these purposes, there is a real risk that these grounds could be abused, not least because there are no prescribed evidential requirements. Furthermore, although landlords will be prevented from letting or advertising the dwelling for three months after receiving possession when these grounds have been used, the shortness of this period means that it provides only a limited deterrent against abuse. In this light, as the Levelling Up, Housing, and Communities Committee acknowledged, these grounds could be “easily exploited by bad landlords and become a back door to no-fault evictions”. Nevertheless, the Bill is hardly a cause for celebration for landlords either. As it stands, their main concerns about the eviction process are the delays in achieving repossession. In the second quarter of 2023, it took a mean average of 29 weeks between a landlord making a claim and securing possession of their property, which the National Residential Landlords Association described as “simply… far too long”. Indeed, a 2019 survey of residential landlords found that 87% of respondents were “dissatisfied” or “very dissatisfied” with the time taken to complete possession cases. Such delays are likely to be worsened by the abolition of no-fault evictions. While the section 21 process can largely be carried out on paper, a section 8 possession claim always requires a hearing, which might lead to greater burdens on the court system, and thus even greater delays. Although the government has promised to improve the court system to prepare it for these changes, and pledged not to implement the Bill until it has done so, it remains uncertain – given the vicissitudes of British politics – whether either of these promises will be fulfilled. Missing the target Consequently, the government’s proposals fail to strike the right balance between landlords and tenants. On the one hand, the Renters (Reform) Bill threatens to seriously harm landlords’ interests, at least without reforms to the courts, by making it harder for them to repossess their properties promptly. On the other hand, it threatens to only superficially improve the position of tenants, by containing what Shelter called “loopholes for unfair evictions to continue”. The government claimed that its proposals would “create a rental market that is fairer and more effective for tenants and landlords”. However, even if the Bill becomes law, which is far from clear, it could easily fall short of those laudable ambitions.