Why protection from retaliatory eviction fails to ensure tenants report unhealthy housing

Last week, I wrote about how England’s tenants will soon be protected from retaliatory eviction. This means that if tenants complain about substandard conditions and the landlord responds by evicting them, they will have the right to appeal their eviction. This is important not just to protect tenants but also to encourage them to report substandard conditions. As I noted, because of a lack of resources for councils to undertake proactive inspections, councils rely on tenants reporting problems in order to enforce standards.

However, protection against retaliatory eviction does not ensure tenants complain about housing conditions, as the New Zealand experience clearly shows. Forty four per cent of New Zealand private tenants live in poor conditions. Much of that housing is below the standards set out in the Residential Tenancies Act, which incorporate the 1947 Housing Regulations that protect tenants from dampness, among other things. Even though tenants are protected from being given notice if they complain about housing problems – the Tenancy Tribunal can “set aside” notice where it considers that notice has been wholly or partly motivated by a tenant exercising their rights –  tenants often choose against exercising that right.

The government is aware that tenants do not complain about substandard conditions. As a recent Cabinet Paper put it, “based on anecdotal evidence, vulnerable tenants may be reluctant to complain for fear of eviction (despite the RTA prohibiting ‘retaliatory notice’)”. To deal with this problem (among a couple of others, some of which I discuss here), the Minister proposes to amend the Residential Tenancies Act (RTA) later this year:

To reduce barriers to tenants exercising their rights, I propose strengthening retaliatory notice provisions. This would involve extending the application period from 14 to 28 days, and making it an unlawful act for a landlord to give retaliatory notice, with a maximum penalty of $2000 (consistent with existing penalties for harassment of a tenant). Establishing that notice is retaliatory can be difficult (because under the RTA landlords are entitled to give 90 days’ notice with no reason), but these measures, combined with better information to tenants, will reduce barriers.

Apparently tenants who try to claim retaliatory notice often do so outside of the two-week window they have (after being served notice) to apply to take a case to the Tenancy Tribunal. While it’s great news that tenants will have an additional two weeks to pursue that option, it clearly won’t fully deal with the problem that the Government has identified. We should think about the reasons tenants do not complain about their housing, even though the law protects them from eviction for asking for repairs or maintenance.

As I wrote last year, there are a number of disincentives to complaining to the landlord or taking the landlord to the Tenancy Tribunal when a home doesn’t meet standards. There’s a difference between formal and substantive rights; regardless of the law, any tenant knows that any action you take can put you and your flatmates or family at risk of losing their home. There’s the fact that a landlord may decide that a tenant that complains too often isn’t worth the hassle, and decides against renewing the tenancy, or gives a 90 day (or 45, in some cases) notice, claiming that it’s nothing to do with the fact that repairs were requested a few months back. Perhaps the landlord makes the repairs and raise the rent out of the tenants’ price-range. Perhaps the landlord will not give the tenants a good reference for their next home. There’s also the fact that if you take the landlord to the Tenancy Tribunal on the grounds of retaliatory notice your name will appear on its database, and a future potential landlord might see that and choose in favour of a more compliant tenant.

Most fundamentally, there’s the fact that complaining might damage the relationship you have with the person that owns your home. We don’t want to rock the boat, because there may be negatives consequences – even if those consequences do not include being given immediate notice. Damage to that important relationship can make life harder in small and large ways. It might mean more frequent and more nitpicky inspections, or the decision that your garden should be concreted, as that will require less maintenance. It might mean everything’s just a bit awkward. As one participant in Sarah Bierre’s research noted, “it is not always the most comfortable situation to be in, to be living in a property when you are in dispute with your landlord”.

The Minister knows that tenants do not complain despite the protection against retaliatory notice. This means he should also know that an additional two weeks to pursue the option of claiming retaliatory notice has been served is unlikely to substantially increase the number of people seeking redress in this matter.

We need to be talking about other ways – ways that do not rely on a tenant reporting substandard housing – to ensure everyone lives in safe, healthy, and secure housing.

I’ll be writing about one of these ways – a rental WOF – next time.

For further discussion on the amendments to the RTA and other housing policy, check out this month’s issue of Policy QuarterlyWhat Effect Will the 2015 Budget Have on Housing? by Philippa Howden-Chapman, Kim O’Sullivan, Sarah Bierre, Elinor Chisholm, Anna Hamer-Adams, Jenny Ombler and Kate Amore.

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