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what the government needs to do to avoid the evictions cliff-edge ?? - Shelter


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what the government needs to do to avoid the evictions cliff-edge ??

From the CEO of charity Shelter 

https://www.insidehousing.co.uk/comment/the-clock-is-ticking-here-is-what-the-government-needs-to-do-to-avoid-the-evictions-cliff-edge

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We are approaching a cliff-edge on evictions and many renters are staring down at the rocks of homelessness below. But there is a way to avoid this outcome, writes Polly Neate

Time is running out to protect renters from homelessness and the current plans have no teeth. But there is a way to avoid this outcome, writes Polly Neate of @Shelter #ukhousing

The clock is ticking. Here is what the government needs to do to avoid the evictions cliff-edge, by Polly Neate of @Shelter #ukhousing

The government, the opposition and campaigning organisations are all looking for the best defence to prevent a tsunami of evictions triggered by the economic shock of COVID-19. And we know that the struggling renters calling our emergency helpline every day are in desperate need of this defence, and fast.

Since the lockdown, one in three of the people we’ve picked up the phone to have been at risk of homelessness. Most of them are renters.

Private renting has long had an unbalanced relationship between landlord and tenant, with tenants shelling out huge amounts of cash for very little security in return. Most agree that the rental market needs belt-and-braces reform – including the government, which promised an entire Renters’ Reform Bill in its last Queen’s Speech.

So it’s hardly surprising, then, that a system this flawed is incapable of providing renters with the protection they need to avoid eviction and possible homelessness during this pandemic. But overhauling it properly will take time. Time we do not have.

Read More

Labour sets out five-point plan for renters as evictions deadline looms

Up-to-date government coronavirus advice for housing providers

Why are hundreds of people still sleeping rough during the coronavirus pandemic? 

What we need is a stopgap that will allow tens of thousands of people to keep hold of their homes when the evictions ban lifts. Temporary protections designed to stop renters falling over the eviction cliff-edge and onto the rocks below.

What that should look like is a big bone of contention. It is where things get messy and opinions diverge.

Is scrapping ‘no-fault’ evictions the silver bullet renters need to protect their homes?

Shelter has long campaigned to end Section 21, the outdated law that means landlords can evict their tenants for no reason. So, it might sound counterintuitive for me to say this, but its abolition would not be enough to help renters now alone. Hear me out on this.

While we absolutely agree that ‘no-fault’ evictions need to go, and quickly, this wouldn’t protect millions of existing tenants. The big chink in the armour here is that scrapping Section 21 would apply only to new tenants with new contracts.

What happens to all those unable to pay their current rent, or the families with eviction notices already hanging over their heads? Even if the government did try to make it apply to existing contracts, it’s likely this could be legally challenged as a breach of human rights.

Encouraging landlords to play fair

Housing secretary Robert Jenrick has proudly pointed to the introduction of a ‘pre-action protocol’ as the golden ticket to the problem of renters being evicted as a result of lost income.

The pre-action protocol would encourage landlords to negotiate with their tenants and come up with a reasonable plan for missed rent.

Sounds great, doesn’t it? And of course some landlords are already doing this. But there are currently zero consequences if a landlord refuses to follow the protocol or fails to be ‘reasonable’ – whatever that means.

Not to mention the fact that it’s wholly unreasonable to expect a family, for whom being evicted would be catastrophic, to put their home on the line by bargaining with a landlord they might never have met.

Basically, it’s a nice idea with no teeth.

Cancelling all rent

A simple and appealing solution: cancel rent for those who are struggling to pay it. Sounds like an easy way to deal with the crippling debt that people are facing.

And clearly, many thousands of renters have lost work and are struggling, and more will in the months to come. The battle to pay rent and feed your family is starkly reflected in the numbers applying for Universal Credit – more than 2.5 million people in just two months.

But cancelling rent isn’t easy and it isn’t a quick fix. As a short-term solution, it would have damaging long-term implications. There would be landlords unable to absorb the financial impact of a total rent cancellation, leading to bank repossessions. It would also likely lead to a legal challenge. What’s pretty certain is that this would result in tenants being evicted and put at risk of homelessness. A gamble not worth taking.

So, what will work?

Luckily there are two tools at the government’s disposal that it could use to immediately protect renters. Emergency legislation to give judges extra powers to prevent evictions caused by coronavirus, and a reinforced safety net to help people pay the rent.

As it stands, evictions due to rent arrears as well as Section 21 ‘no-fault’ evictions are granted automatic approval through the courts. But some small tweaks to our laws could prevent those automatic processes taking place. Instead, judges would consider the impact of COVID-19 on a landlord’s possession claim and compel them to work with their tenants on a manageable solution.

The other tool the government already has set up to get cash to people before they hit rock bottom is Universal Credit. All the government needs to do is remove the benefit cap and boost the housing part to cover average local rents. Such targeted changes to the safety net would help people avoid eviction, poverty and debt while they get back on their feet.

These solutions can be enacted quickly and would help millions swerve the evictions cliff-edge. But if the government gets this wrong and lifts the ban without proper protection, a spike in homelessness will inevitably follow.

We’ll be watching as the clock ticks down to see if the government can do the right thing.

 

Edited by Saving For a Space Ship
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"All the government needs to do is remove the benefit cap and boost the housing part to cover average local rents. Such targeted changes to the safety net would help people avoid eviction, poverty and debt while they get back on their feet."

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7 hours ago, Saving For a Space Ship said:

The big chink in the armour here is that scrapping Section 21 would apply only to new tenants with new contracts.

Are you sure about that? I don't pretend to be a legal expert but how is this any different from tenant fees (that appear in AST) being applied to existing tenancies (as they will from June 1st this year)? Government may like to stagger implementation to new tenancies then existing tenancies to placate LL and LA, but eventually it'll apply to all. You can't have someone on a statutory periodic 10 years after the S21 ban and then evict them under this clause surely? 

7 hours ago, Saving For a Space Ship said:

Even if the government did try to make it apply to existing contracts, it’s likely this could be legally challenged as a breach of human rights.

Good luck with that. I can't see it myself, especially given repealing S21 was announced at the Queen's Speech. And another thing, when did regaining possession of an asset become a 'human' right?

7 hours ago, Saving For a Space Ship said:

Section 21 ‘no-fault’ evictions are granted automatic approval through the courts

Have to say i didn't even think S21 involved the courts. My own was a find+replace document signed by the LA paralegal. 

7 hours ago, Saving For a Space Ship said:

But if the government gets this wrong and lifts the ban without proper protection

I may be wrong but i seriously can't see the government reinstating S21 to what it was before given they have so publicly pledged to abolish it. 

7 hours ago, Saving For a Space Ship said:

From the CEO of charity Shelter 

Interesting, but i think i could have said the above with 50% fewer words. 

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19 minutes ago, sammersmith said:

Good luck with that. I can't see it myself, especially given repealing S21 was announced at the Queen's Speech. And another thing, when did regaining possession of an asset become a 'human' right?

 

https://england.shelter.org.uk/legal/security_of_tenure/possession_proceedings/public_law_and_human_rights_defences

Article 8(1) of the ECHR provides that 'Everyone has the right to respect for his private and family life, his home and his correspondence'. The UK courts have held that eviction is an interference with the right to respect for the home.[9]

... The European Court of Human Rights (ECtHR) noted that an interference with Article 8 rights will be considered necessary if it is proportionate to the legitimate aim pursued... 

... A residential occupier defending possession proceedings against a private landlord is not entitled to raise an Article 8 defence to prevent or delay the possession claim. Even where the circumstances are very exceptional and the tenant is vulnerable, the court does not have power to consider the proportionality of making a possession order where a private landlord's contractual rights entitle her/him to mandatory possession.... 

... The Supreme Court considered that in most cases where there is an entitlement to possession under domestic law, there will be a very strong case for saying the order would be proportionate. The threshold for the county court to consider that an order would be disproportionate is very high, and for a defence to be seriously arguable the court must be satisfied that the facts are highly exceptional... 

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19 minutes ago, regprentice said:

A residential occupier defending possession proceedings against a private landlord is not entitled to raise an Article 8 defence to prevent or delay the possession claim

I note that a tenant cannot claim their human rights are breached through eviction, but that's not the same as a landlord claiming that removing their right to evict breaches their human rights as a landlord? Thats how i interpreted what the Shelter blog was saying. That removing S21 from existing tenancies would be legally challenged by, I assume, landlords on the grounds that it is against their human rights. 

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25 minutes ago, sammersmith said:

I note that a tenant cannot claim their human rights are breached through eviction, but that's not the same as a landlord claiming that removing their right to evict breaches their human rights as a landlord? Thats how i interpreted what the Shelter blog was saying. That removing S21 from existing tenancies would be legally challenged by, I assume, landlords on the grounds that it is against their human rights. 

I believe what they are saying is that, for a private landlord, their right to enjoy the home they own supercedes the right of a tenant to enjoy that same home which they only rent. In reality most landlords wouldn't be evicting to take possession themselves - though some might for tax purposes. IIRC There used to be CGT relief available for up to 2 years ownership for living in an investment property which incentivised moving in yourself for the last two years before selling the property. 

It's implied the right of a commercial landlord is different, and in that case further evidence of proportionality would be required by the court. Not sure where that leaves a private landlord with a ltd company, which the current S24 tax changes encourage. 

Edited by regprentice
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9 minutes ago, regprentice said:

for a private landlord, their right to enjoy the home they own supercedes the right of a tenant to enjoy that same home which they only rent.

i see. But my objection is the definition of the property as the landlords 'home'. Depending on your perspective, buy to let is either an investment or a business, but it's certainly not intended as a home for the landlord. The only condition this might be argued is the case of a residential mortgage with consent to let granted. Assuming, as in most cases, the landlord has a buy to let mortgage then the terms of this mortgage will prevent the landlord from using it as their own home anyway. 

There's no denying that the LL owns the residential dwelling, so are covered by property law, but they are not, and in most cases were never, the occupier. Their 'enjoyment' of the home is the collection of rent and capital appreciation. I think any human rights claim based on an investment property being their home is on incredible shaky ground.  

7 minutes ago, regprentice said:

There used to be CGT relief available for up to 2 years ownership for living in an investment property Iirc which incentivised moving in yourself for the last two years before selling the property. 

I thought this still was the case and i recall the LL only needed to be residence for 4 months before selling, though it was a number of years ago that i heard that so wouldn't be surprised if it's been reformed. 

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21 minutes ago, sammersmith said:

There's no denying that the LL owns the residential dwelling, so are covered by property law, but they are not, and in most cases were never, the occupier. Their 'enjoyment' of the home is the collection of rent and capital appreciation. I think any human rights claim based on an investment property being their home is on incredible shaky ground.  

Your human right to shelter doesn't bind a private landlord you've signed a contract with because you happen to quite like his flat, it binds the government and your local council housing team to prevent you sleeping rough 

https://www.insidehousing.co.uk/insight/insight/why-glasgow-council-is-routinely-breaking-the-law-on-homelessness-65177

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9 minutes ago, regprentice said:

Your human right to shelter doesn't bind a private landlord you've signed a contract with because you happen to quite like his flat, it binds the government and your local council housing team to prevent you sleeping rough 

https://www.insidehousing.co.uk/insight/insight/why-glasgow-council-is-routinely-breaking-the-law-on-homelessness-65177

I know, I get that. What i'm saying, in relation to the Shelter blog, is that removing the right of a landlord to evict a tenant using S21 is not a breach of the landlord's human rights. Has nothing really to do with the tenant. There may be a legal basis for not removing S21 from existing ASTs, but it surely cannot be a human rights violation to the landlord. 

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9 hours ago, sammersmith said:

I know, I get that. What i'm saying, in relation to the Shelter blog, is that removing the right of a landlord to evict a tenant using S21 is not a breach of the landlord's human rights. Has nothing really to do with the tenant. There may be a legal basis for not removing S21 from existing ASTs, but it surely cannot be a human rights violation to the landlord. 

Govt has to balance the landlord's right to not be deprived of his possession of a house he owns against the tenants right to a home. As I said before that's not for resolution between a landlord and tenant despite them having a contract, but for the two to resolve independantly with govt. 

https://www.bihr.org.uk/blog/the-human-rights-act-unwrapped-right-to-peaceful-enjoyment-of-possessions

The Human Rights Act protects the right to peaceful enjoyment of possessions. 

The Human Rights Act protects our right to enjoy possessions without interference, deprivation or control of those possessions. This right is 'non-absolute' and for there to be an interference there has to be a law that allows it and it has to be in the public interest and the response has to be proportionate. 

Possessions in this right include things like land, houses and objects you own. It also protects other things like shares, licences, leases, patents, money, pensions and certain types of welfare benefits.

Edited by regprentice
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I appreciate you explaining this to me. I do not know much about the Human Rights act but Shelter's interpretation doesn't seem to be in the spirit of the act imo. 

For example:

1 hour ago, regprentice said:

the landlord's right to not be deprived of his possession of a house he owns

No ones suggesting depriving the landlord of his investment. Even with the removal of S21 he still owns and can collect rents on this investment. 

1 hour ago, regprentice said:

The Human Rights Act protects our right to enjoy possessions without interference, deprivation or control of those possessions. This right is 'non-absolute' and for there to be an interference there has to be a law that allows it and it has to be in the public interest and the response has to be proportionate. 

I would also argue removing S21 does not deprive LL of reasonable control of his asset. If the tenant stops paying rent or wrecks the place they can be removed using a S8. No one, neither me, Shelter, or the Government, are suggesting the removal of S8.

I don't personally believe S21 should have ever have been introduced at all and, by making the Assured Shorthold Tenancy the only new tenancy being offered, breached tenants human rights. S21 puts power solely in LL hands and makes any tenant victory hollow if the LL can counter with an eviction out of spite. Letting agents also use S21 to coerce tenants into expensive renewals even though they have a legal right to enjoy a statutory periodic tenancy.  

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26 minutes ago, sammersmith said:

... No ones suggesting depriving the landlord of his investment. Even with the removal of S21 he still owns and can collect rents on this investment. 

I would also argue removing S21 does not deprive LL of reasonable control of his asset. If the tenant stops paying rent or wrecks the place they can be removed using a S8. No one, neither me, Shelter, or the Government, are suggesting the removal of S8.... 

Incidentally I've no legal experience 

I'm Looking at S8 and S21 in broad terms considering the difference relevant to the landlord's ability to enjoy the property without deprivation or loss of control. 

Under S21 you can evict for no reason, under S8 you must have a legitimate ground for possession. I'm stretching here, but to meet the definition of 'legitimate ground for possession' I'd assume that means something serious such as ' the landlords has lost his main home and now needs to live in this second home he owns'. I'm assuming an explanation such as 'I want to evict because I just want the house back for no specific reason' wouldn't be sufficient under S8. 

To my mind that would leave a gap between the two regs where the landlord wants the property back, but has no real pressing need he can demonstrate that warrants bringing a S8. I believe he has a 'human right' to do this. 

So S21 meets his human rights but it could be argued the test of a 'legitimate ground' under S8 sets the bar too high to meet that human right. 

The basis for that observation is my assumption that the landlord's 'right to enjoy' is not the 'right to enjoy' the rent money, but the 'right to enjoy' the ability to live in the house himself, decorate or renovate the house, pass the tenancy to a favoured tenant (family, friend etc) etc. 

To my mind the Human Rights legislation doesn't specifically identify a landlord. So the rules about owning a possession would be equally relevant to someone who owns a painting or a classic car who lends it to a museum then, for personal reasons, decides to end the loan agreement and request the return of the item. 

To the best of my knowledge the day to day running of the courts, legal documents issued etc do not refer to the European Convention on Human Rights. Most law in this country around possession will be older that the European act... However I believe Shelters interest in interpreting the ECHR is more about using it to force change in UK legislation that shelter as an organisation would like to see, than it is labout the ECHR being a common legal instrument that most organisations would turn to and interpret in the first instance. 

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3 hours ago, regprentice said:

To my mind that would leave a gap between the two regs where the landlord wants the property back, but has no real pressing need he can demonstrate that warrants bringing a S8. I believe he has a 'human right' to do this.

Yes, I agree with your assessment but not with the conclusion. I don't think the LL should have a need/right to regain possession if the tenant has not breached their tenancy agreement. In my opinion this is a legitimate business risk that a LL should either suck up or not enter the industry. I don't see why the law, and by extension taxes, should be used to give a LL business freedom. 

3 hours ago, regprentice said:

So S21 meets his human rights but it could be argued the test of a 'legitimate ground' under S8 sets the bar too high to meet that human right. 

As i understand it, the proposed removal of S21 includes grounds added to S8 to regain possession if the LL wants to sell or move back. I also don't like this proposal as it gives a clear workaround for the LL and there are no consequences if they, after evicting the tenant, change their mind and re-let. If the previous tenant had a financial claim on the LL if they remove them and re-let to a new tenant then i would accept this amendment to S8. There has to be a cost to the LL if they abuse S8.  

4 hours ago, regprentice said:

pass the tenancy to a favoured tenant (family, friend etc) etc. 

I really disagree with this. Evicting someone because the LL's darling is coming of age feels like some medieval practice, and not a modern 21st century housing model. 

4 hours ago, regprentice said:

someone who owns a painting or a classic car who lends it to a museum then, for personal reasons, decides to end the loan agreement and request the return of the item

Stable shelter is different and it should be much harder to take away from someone. As you've pointed out councils are responsible for ensuring that everyone has shelter, whereas no one needs a car or artwork. 

4 hours ago, regprentice said:

Shelters interest in interpreting the ECHR is more about using it to force change in UK legislation that shelter as an organisation would like to see, than it is labout the ECHR being a common legal instrument that most organisations would turn to and interpret in the first instance

Maybe. I like Shelter for the most part but i think their interpretation of a potential conflict of a LL's human rights is a bit off. However i'm sure they have smarter people than me working for them so i'll leave it in their more than capable hands. 

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