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Why Section 21 has got to go

DAVID RENTON argues we must put the burden on landlords to persuade a judge that evictions are reasonable. The government has already agreed to do this — we cannot let it wriggle out of its promise now

HAS anyone ever succeeded in getting Boris Johnson to keep a promise? This is the uncomfortable situation the left and the working-class movement finds itself in as this lockdown reaches its end.

In summer 2019, the Conservatives (then led by Theresa May) announced that they would repeal Section 21 no-fault evictions, the main way by which private-sector landlords obtain possession from their tenants.

Few tenants’ representatives took that promise altogether seriously. This was an unpopular government, detested above all by the young and by tenants. It felt like a giant bribe to buy off our opposition. But the promise was made.

In summer 2019, the government went so far as to consult on what would replace Section 21. The pledge of reform was then repeated in the Conservatives’ election manifesto and in the Queen’s Speech that December. 

As the pandemic took told, the housing, communities & local government select committee published a draft Bill that would have effectively abolished Section 21 for the duration of the lockdown in such cases.

The government responded, saying that it “remains committed to tenancy reform and we want to take forward these proposals in a considered manner at the appropriate time.”

OK, we might ask, but if there is enough spare Parliamentary time to introduce a Bill intended to ban protests, that must mean this is the right time to help tenants.

Housing Minister Christopher Pincher is reported to have told landlords’ representative bodies a few weeks ago that “the social and economic terrain needs to be a stable one” before housing reform can commence. So, the promise was made, but it has been pushed off to the future. When they say not now, do they mean not ever?

To understand why Section 21 matters so much, it is worth taking a few steps back and revisiting some history. Between 1915 and 1988, private-sector housing in Britain was governed by a series of laws that made it hard for landlords to increase rent. 

The Acts began with a rent strike led by the wives of munitions workers in Glasgow and huge demonstrations in the rent strikers’ support. “Father is fighting in Flanders,” one banner read, “We are fighting the landlords here.”

An Increase of Rent & Mortgage Interest (War Restrictions) Act 1915 stopped landlords from increasing rent for the duration of the war. A Courts (Emergency Restrictions) Act 1917 and an Increase of Rent & Mortgage Interest (Amendments) Act 1918 extended this protection into the post-1918 world.

Rent regulation reached its zenith with the Rent Act 1965, which introduced regulated tenancies with long-term security of tenure and fair rents assessed by independent rent officers.

The idea of rent regulation, as opposed to rent control, was that rents would be set by the market and, where landlords and tenants disagreed, either or both could refer the rent to a rent officer.

The rent officers were valuers appointed by the local authority. If either the landlord or the tenant objected to the officer’s proposed rent, they could appeal to a rent assessment committee.

The rent Acts were ended by Thatcher’s government with the Housing Act 1988, which provided for a new system of private-sector tenancies (known as assured shorthold tenancies). Secretary of state Nicholas Ridley explained that the purpose of the Act was to create a market in private rented properties.

Rent control, he continued, had reduced the number of private rented properties from 30 per cent of all homes to just 8 per cent. It was now the government’s intention to reverse that process. The fault with rent control was that landlords were not well paid enough for their monopoly ownership of the land: “Rent restrictions have resulted in inadequate rent for the private sector.”

A government-constructed market would produce bumper profits for landlords. In Ridley’s words, “The original rent will be determined entirely by negotiation between the tenant and the landlord ... The assured-tenancy scheme will be attractive to people in the business of long-term letting.”

Assured shorthold tenants would hold their property for a fixed term (usually six months). On the conclusion of their tenancy, they were entitled to just two months’ notice that they were required to leave, after which a landlord could apply to the courts for an eviction order under the “accelerated procedure.”

The landlord would not need to give a reason for the eviction and was entitled to a possession order as of right. There was, in principle, no defence to eviction. This system of landlord advantage is the one which remains in place today, thanks to Section 21.

The Housing Act 1988 Act, as a decaying memory of the previous system of rent control, contained some limited obstacles to rent increases. In principle, a landlord may only raise the rent on a periodic assured or assured shorthold tenancy by means of a notice of increase in a prescribed form. But the term of the tenancy is short, and the tenant has no right to stay in the premises and faces the constant threat of eviction.

This means that landlords can demand new rent whenever the tenant signs a new tenancy agreement. If they object to the rent rise, the landlord can simply evict them. It was through the device of quick evictions, not requiring any justification, that what Ridley had called an “adequate” rent for private landlords was guaranteed. 

Section 21 was, in other words, one of the two main pillars of the post-1988 housing system that keeps rents artificially high and house prices high more generally, so that the average age at which people buy homes is mounting every year, as is their costs and the amount of profit claimed by landlord and the banks.

The other pillar was “right to buy,” which resulted in a mass sell-off of council homes. Millions of people in Britain know about right to buy, there is a near-total consensus on the left and centre of British politics that it was a disastrous mistake.

But, until recently, there has been no equivalent discussion of Section 21 and the part it plays in keeping private secure tenancies insecure and rents high.

Even without the government having agreed to repeal Section 21, the likelihood is that tenants would be talking about it now. It is clear that millions of people have lost their jobs during the pandemic, while others have endured pay cuts.

The number of people on universal credit has increased from 2 million in April 2020 to 6 million in November 2020. One organisation, HouseMark, estimates that social-housing debt has risen 30 per cent under the pandemic to more than £1 billion.

Covid-19 has made hundreds of thousands of people anxious about what the future will mean for them. There is an obvious answer: abolish Section 21. Force landlords, when seeking possession from their tenants to supply a reason for evicting them. Put the burden on the landlord to persuade a judge that such an eviction would be reasonable. The government has, after all, promised to do just that.

But that’s the point about the Conservatives, isn’t it? The pledges they make to assist the rich, or to build up the most repressive parts of the state, they keep: those that would help millions of people, they try to escape. The task facing all of us is to make sure that ministers can’t be allowed to forget the promises they made.

David Renton is a barrister. His book Jobs and Homes: Stories of the law in the lockdown is due to be published by Legal Action Group in April.

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