Tenancies (Reform) Bill

Stephen Gilbert Excerpts

Friday 28th November 2014 Commons Chamber

[Mr Chope]

I am grateful to my hon. Friend for that very pertinent question. I think it comes back to the lack of a regulatory impact assessment. The Bill has the potential to put more responsibility on to local authorities, but we know they are already not exercising those responsibilities. The Minister said that they had been given specific grants by the Government in the past year. I think he talked about £6.7 million, if my memory serves me. Despite that, the amount of activity he described by local authorities dealing with problems relating to housing in a bad state of repair was very small indeed in comparison with the vast number of properties—some 4 million—that are currently let by landlords to tenants.

That deals with one of the issues relating to the further exemptions under section 1 set out in clause 2. It is still far from clear that putting the burden on the landlord to show that a complaint is totally without merit is a solution to the problem that the Minister and the promoter of the Bill identified, which is how to deal with tenants who are mischievous, who want to prolong their tenancies, who cause trouble for the landlord or who effectively are in what might be described as the tenants’ awkward squad. If this is to be any use, the burden should be the other way around. The burden should be on the tenant to show that the complaint has merit—the burden of proof should be reversed.

Clause 2(1) states:

“Subsections (1) to (3) of section 1 do not apply where the condition of the dwelling-house or common parts that gave rise to the service of the relevant notice, or consideration of whether to serve a…notice, is due to a breach by the tenant of—

(a) the duty to use the dwelling-house in a tenant-like manner, or

(b) an express term of the tenancy to the same effect.”

That will be subject to litigation. Whether a tenant has failed in a duty to use the dwelling-house in a tenant-like manner is ultimately something that has to be justiciable by the courts, even where it is alleged that there is a breach of an express term of the tenancy.

Why would tenants want to play the game of engaging in litigation? If they are impecunious, they know they can engage in retaliatory action against their landlords by using the courts against them. They could turn the powers in the Bill, which are designed to try to protect tenants, upside down and use them as a weapon against landlords. That is the concern being expressed by landlords’ associations. It is a pity that in listing the bodies the Minister has consulted, he did not mention the Residential Landlords Association, which represents many independent private landlords who are responsible and want to comply with the law, but who are extremely concerned about the consequences of the Bill were it to get on the statute book.

If we start raising questions of whether a tenant has breached an express term of a tenancy or failed to use the dwelling house in a tenant-like manner, we effectively return to the litigiousness of the landlord-tenant law that preceded the assured tenancy regime and section 21 notices, the whole purpose of which was to avoid the litigation and doubts associated with the termination of an assured shorthold tenancy after it had run its six-month course or at some subsequent time. The Bill would resurrect, almost covertly, those old litigious opportunities.

Before I entered the House, I was a practising barrister, and I spent many an enjoyable occasion before judges in the county courts—I will not list those I had the pleasure of practising in—representing tenants and landlords. I was familiar with how the complicated law, as it was prior to 1988, was used by the unscrupulous to prolong the agony, to themselves, often, and the landlord, and at great expense—I am talking about fees as well as the cost to the Courts Service and legal system. The purpose of section 21 notices, which would be undermined by the Bill, was to curtail that activity and the adversarial approach to dealing with tenants’ problems.

The Minister and promoter of the Bill say that clause 2, introducing further exemptions to the application of clause 1, balances out the rights of a tenant as against the landlord, but I do not think that is so. That point is reinforced by clause 2(3), which would provide for a further exemption where the dwelling is

“genuinely on the market for sale”.

Who will assess whether it is “genuinely” on the market? The explanatory notes mention family members, and clause 2(4) spells out specific cases where the landlord would not be regarded as being engaged in a genuine sale—

[Stephen Gilbert]

claimed to move the closure (Standing Order No. 36).

Question put forthwith, That the Question be now put.