S21 ban: Should straightforward possession cases be decided out of court?

As we are all aware, the government intends to remove the option for landlords to use the no fault eviction notice under Section 21 of the Housing Act 1988, which with our current system would leave only grounds under Section 8, similar to the system recently introduced in Scotland.

Unlike Scotland, however, there is currently no plan to introduce a specialist housing court as such, only to add two “no fault” grounds – landlord needs to sell property and tenant or a member of their family needs to move into the property themselves (my understanding is they won’t need to have lived there before).

The government is set to announce its consultation soon.

However, as many of us know only too well, before a government body announces a consultation, the issue has already been decided, so I don’t believe we will persuade them to change their mind on the broader issue, but I do believe we may be able to persuade them to give us something that is as good as or even better than Section 21, while still being fair to tenants.

Dr David Smith believes that while government are committed to abolishing Section 21, they are prepared to take on board other proposals to reform the possession process, even reforming Section 8 completely. A webinar he took part in with Tessa Shepperson earlier in the week can be heard here and there’s a note of the main points.

I believe an alternative to Section 21 and reform in general could be achieved by making the new grounds and other more straightforward grounds accelerated (meaning it’s normally decided without a hearing), including the existing Ground 8 for arrears, provided the evidence is clear cut and the tenant is unable to refute it.

Moreover, instead of such cases being decided by random district judges who often have no knowledge of housing law, why not use trained case officers to decide on straightforward possession claims? There is at least one other example of case officers deciding on important legal property matters in another government agency; Land Registry uses highly trained case officers to determine legal title to land (with the option to refer cases to inhouse lawyers where necessary) and has done so throughout its long history.

Using trained case officers would be much more efficient and cost effective, not to mention fairer both to claimants and defendants, than the present system where cases are being decided by people who, though highly qualified and competent in other aspects of law, know absolutely nothing about the finer details of possession legislation.

These are just a few of many examples of where judges’ lack of knowledge has resulted in possession cases being thrown out for no good reason:-

• A judge took one look at the perfectly valid Form 3 Section 8 notice the landlord had served on the tenant, and immediately dismissed the claim on the basis the notice was invalid because it referred to agricultural occupancy.

• A Section 8 was thrown out because a Section 21 notice was not served at the same time. Section 8 and Section 21 are completely separate from each other and one does not require service of the other. A housing barrister checked the paperwork afterwards and found everything in order.

• Another example was where a Section 8 was thrown out because the expiry date was not the last day of a tenancy period (this is only applicable to Section 21 notices, and was in fact changed to allow just two straight months under the Deregulation Act 2015).

• Yet another: an overseas landlord instructed a fully qualified and regulated solicitor to attend his Section 8 hearing in his absence, and the solicitor produced his client’s instruction, but the case was still thrown out by the judge. Solicitors and barristers have a right of audience to attend court in their client’s place.

Unsurprisingly, there is a total lack of morale amongst district judges at the moment…

Good tenants would benefit as a more efficient possession system would give existing landlords more confidence to remain in the housing market and encourage responsible new ones to join, meaning less depletion of housing stock, which we all know is already in short supply.

If the abolition of Section 21 goes ahead without being replaced with another viable means of obtaining accelerated possession where appropriate, it goes without saying that housing stock for middle and lower income groups who need to rent will decline further.

In addition to the new grounds, and a new form of accelerated possession, there must also be a option for tenancies to have an end date where there is a good reason to do so; for example when letting to students, and a ground for possession where the tenant doesn’t leave at the end.

This is one failing under the new Scottish Private Residential Tenancy system. Another is the insistence that every case is given a whole half day’s hearing – a laudable aim in theory but not in practice. The Scottish Housing Tribunal currently has a massive backlog of cases – exactly why straightforward cases need to be kept out of court and decided without a hearing.

I would appreciate comments and feedback from anyone (in any capacity) with experience of the current possession system – especially if you had to attend a hearing; for example, was the judge knowledgeable and did you believe you had a fair hearing, or not…. I would also particularly appreciate comments from any lawyers in housing law practice.

Thank you for your time.

Mandy

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