This article was published first in The Conversation.
Record numbers of families now rent privately in Britain. Twice as many middle-aged people rent their homes compared to 2008, and it has been estimated that about one-third of millennials will rent for their whole life.
Renting the house you live in has its advantages as it gives you greater freedom of movement and saves you other costs: insurance, service charge, deposit, mortgage interest, to name a few. Yet, for most people, renting privately is not really a matter of choice. It is the result of stagnant wages and the fact that house values rise much faster than the economy.
Britain is becoming a country of (reluctant) tenants. But the law does not keep the balance fairly between landlord’s interests and tenant’s rights.
English law on rental evictions does not protect households’ security of tenure. A recent report by campaign groups Just Fair and Generation Rent shows that a system that allows landlords to evict tenants without reason breaches international law. Yet this is permitted under Section 21 of the UK Housing Act 1988.
Poor housing proliferates
According to the government’s English Housing Survey, the private rental sector has the highest proportion – 38% – of homes with at least one indicator of poor housing such as mould or damp. More than one quarter (27%) of privately rented homes fail the decent home standard, compared to 20% in the case of owner-occupied homes and 13% in the social housing sector.
Many tenants have good reasons to complain about the state of their flat. But English law does not currently require all landlords to maintain a property in a standard that is fit for habitation. The Landlord and Tenant Act 1985 imposes obligations to repair on landlords but only if there is “disrepair” – damp, mould or asbestos not causing structural damage are not covered.
In this context, tenants are at risk of eviction if they take legal action because Section 21 of the Housing Act 1988 permits landlords to evict tenants with no fault and without giving a reason.
The National Audit Office watchdog has documented that the ending of private sector tenancies is the biggest single driver of statutory homelessness in England. Based on official data from the Ministry of Justice and the Ministry of Housing, Generation Rent has found a tight correlation between homelessness and Section 21 evictions: 92% in London and 88% outside of London.
Lessons from others
The lack of awareness and understanding of tenants’ personal circumstances is not unique to England. My own research in Spain on foreclosures and mortgage evictions and on rental evictions has shown similar patterns. If the English and the Spanish markets have something in common it is precisely the rise of renting as a form of tenure following rapidly growing prices, which makes home ownership unaffordable for most families.
Security of tenure and fair treatment when it comes to rental evictions are perfectly compatible with landlords’ right to private property. Law and practice in other places with longer traditions in the rented housing sector prove that things can be done differently if there is will for it.
Scotland, for example, distinguishes between “mandatory” and “discretionary” grounds of eviction. In discretionary cases, landlords must prove that relevant circumstances exist but the court will only grant recovery of possession orders if it considers it is reasonable to do so.
In San Francisco, one of the most expensive cities in the US, tenants that are evicted with no fault have a right to a relocation payment from the landlord.
South African courts usually urge public authorities to report on their capacity to provide alternative accommodation to those in need who would otherwise be rendered homeless by the eviction. Authorities are expected to determine occupants’ needs by engaging with them meaningfully regarding their circumstances. Where occupants cannot afford the available private housing and the eviction would lead to homelessness, the court makes the order contingent on public provision of alternative accommodation. If necessary, landlords are expected to wait until the authorities are able to provide a housing solution.
In the Netherlands and Germany, courts are entitled to take tenants’ personal circumstances into account to balance tenant interests with those of landlords when judging the fairness of the lease termination.
England must pay close attention because alternatives do exist. With renting in England a reality for the foreseeable future, no-fault evictions must end and best practice sought from places where renting is the norm and fairer systems are in place.