Eliminating Landlord Retaliation in England and Wales?Lessons from the United States

• Author: Melissa T. Lonegrass
• Position: Harriet S. Daggett-Frances Leggio Landry Professor of Law & Bernard Keith Vetter Professor of Civil Law Studies, Louisiana State University, Paul M. Hebert Law Center.
• Pages: 1071-1123

Eliminating Landlord Retaliation in England and Wales—Lessons from the United States Melissa T. Lonegrass * I. Introduction ........................................................................1072 II. Anti-Retaliation Legislation in England and Wales ..........1076 A. Legal Background ........................................................1076 B. The Impetus for Reform ...............................................1078 C. Proposed Legislation in England—The Tenancies (Reform) Bill of 2014–15 ............................................1083 III. Reaction and Debate ..........................................................1085 A. Wavering Support for Reform .....................................1085 B. Opponents Speak Out ..................................................1086 C. Covert Legislative Response—The Deregulation Bill ................................................................................1089 D. A Proposal in Wales—The Renting Homes (Wales) Bill ..................................................................1090 E. Examination of Foreign Experience ............................1091 IV. American Prohibitions on Landlord Retaliation ................1092 A. Early Prohibitions on Retaliation .................................1093 B. Uniform Law and the Restatement ..............................1095 C. Proliferation—States and Municipalities .....................1097 1. Affirmative and Defensive Claims ........................1097 2. Coverage of Tenant Activities and Landlord Behaviors ...............................................................1098 3. Proof of Retaliatory Motive ...................................1100 4. Remedies ................................................................1102 Copyright 2015, by MELISSA T. LONEGRASS. * Harriet S. Daggett-Frances Leggio Landry Professor of Law & Bernard Keith Vetter Professor of Civil Law Studies, Louisiana State University, Paul M. Hebert Law Center. I would like to thank the LSU Law Center for its generous research support. I would also like to thank the participants of the 2014 Annual Meeting of the Central States Law Schools Association, at which a draft of this paper was presented, for their thoughtful commentary. Special thanks are due to Christopher K. Odinet for his helpful suggestions. Finally, I am most grateful to my student assistants, Samuel Crichton (class of 2014), Rodger “Rory” Green (class of 2015), Alex Robertson (class of 2016), and Aaron Scamp (class of 2015) for their research and editing assistance. 1072 LOUISIANA LAW REVIEW [Vol. 75 5. Exceptions ..............................................................1102 D. The Revised Uniform Law ...........................................1103 V. The Efficacy of U.S. Retaliation Laws ..............................1106 A. Empirical Data on Evictions in the United States ........1106 1. The Scarcity of Empirical Data ..............................1106 2. What the Data Show ..............................................1108 B. The Institutional Context of Anti-Retaliation Laws ....1109 1. Legal Representation .............................................1110 2. Housing Courts ......................................................1112 3. Reporting of Evictions ...........................................1114 4. Financial and Informational Concerns ...................1115 VI. Lessons for the United Kingdom .......................................1117 A. Doctrine ........................................................................1118 B. Context .........................................................................1120 VII. Conclusion .........................................................................1122 I. INTRODUCTION Alice is a residential tenant living in a low-income neighborhood in Milwaukee, Wisconsin. 1 Like most low-income tenants, Alice did not sign a written lease, and she rents month-to-month. Although Alice’s apartment is in relatively good repair, the heater does not work, and several of the windows are broken. The unit is drafty, and her infant son is often sick. After making several unsuccessful complaints to her landlord, Alice contacted the city agency responsible for code enforcement to report her apartment’s condition. Within days of making her complaint, Alice’s landlord served her with a five-day notice of eviction designed to send a message to her and the other tenants that complaining to the local authorities has consequences. Nearly 4,000 miles away in Crosby, Liverpool, Debbie faces a similar fate. 2 Debbie lives alone in a rented flat and suffers from 1. This hypothetical is adapted from a case study reported in the empirical and observational work of Matthew A. Desmond in Eviction and the Reproduction of Urban Poverty , 118 AM. J. SOCIOLOGY 88 (2012). 2. This hypothetical is adapted from a report of the Citizens Advice Bureau on retaliatory eviction in the United Kingdom. DEBBIE CREW, THE TENANT’S DILEMMA, WARNING: YOUR HOME IS AT RISK IF YOU DARE COMPLAIN, CITIZENS 2015] ELIMINATING LANDLORD RETALIATION 1073 Crohn’s disease. The windows in her flat do not close, and the house is often damp. The sole heater—a small electric fireplace— does not heat the dwelling sufficiently and is very expensive to run. After Debbie’s landlord refused to pay for a new heating unit, she sought help from a local charity, which was in turn able to secure a grant for central gas heating to be installed on the property. However, the landlord declined the grant when contractors advised that he would need to pay £800 to have the meter relocated to comply with local housing regulations. The charity advised Debbie that although she had the right to take action to require her landlord to comply with the law, she risked provoking retaliation by her landlord in the form of an eviction. Debbie decided to do nothing rather than jeopardize her housing. Although Alice and Debbie face similar challenges, Alice’s circumstances may be somewhat less grim. Wisconsin law expressly forbids “retaliatory eviction” in response to a tenant’s complaint to a local housing code enforcement agency or to the landlord about the condition of the premises. 3 In fact, municipal law not only prohibits this conduct, but it also presumes that any attempt by a landlord to terminate a tenancy within 12 months after a complaint to the housing authority is retaliatory. 4 Under state and local law, Alice has a valid defense to her landlord’s suit for eviction. Provided she pays her rent on time, Alice can be assured that her tenure is secure for at least the next year. Currently in England, however, no such prohibition on landlord retaliation is recognized. Landlords are entitled to evict tenants renting under periodic tenancies for any reason simply by serving proper notice. 5 ADVICE BUREAU 3 (2007), available at http://https://www.citizensadvice.org.uk /tenants_dilema_-_document.pdf, archived at https://perma.cc/A72G-SM7M. 3. WIS. STAT. ANN. § 704.45 (Westlaw 2015); WIS. ADMIN. CODE ATCP § 134.09(5) (Westlaw 2015); MILWAUKEE, WIS., CODE OF ORDINANCES § 200-21-8 (2009). 4. MILWAUKEE, WIS., CODE OF ORDINANCES § 200-21-8 (2009) (“It shall be presumed that any attempt to terminate the tenancy, or to increase charges, or to reduce services or to refuse to renew a rental agreement, or to otherwise harass or retaliate against such occupant or to reduce the level of services being rendered to such occupant during the period from the first complaint to the commissioner to 12 months after complete reimbursement to the city for the costs incurred by it in acting under this section is done in retaliation and is void and subject to a forfeiture of not less than $100 nor more than $2,000 for each such attempt.”). 5. Housing Act, 1988, c. 2, § 21(1)(b) (Eng.). See also infra Part II.A. Unlike a tenancy for a fixed term, a periodic tenancy continues indefinitely, usually on a month-to-month basis. 1074 LOUISIANA LAW REVIEW [Vol. 75 Thus, Debbie risks losing her home if she makes a complaint to the local authority, no matter how legitimate it may be. Retaliatory eviction has been the subject of much recent public debate in the United Kingdom. 6 Tenant advocates in England and Wales claim that landlord retaliation is widespread—even rampant—with over 300,000 tenants experiencing some form of landlord retaliation each year. 7 Fear of landlord retribution, it is argued, stymies complaints about housing conditions and in turn leads to hazards and blight. 8 Over half of the private tenant population in England alone endures damp conditions, mold, leaking windows and roofs, electrical hazards, animal infestations, and gas leaks, and as many as one in eight dare not speak up for fear of a landlord’s revenge. 9 In July 2014, public concern about landlord retaliation came to a head when landmark legislation aimed at preventing retaliatory eviction was introduced in England’s House of Commons. 10 In substance, the proposed law is simple—it would prevent a landlord from serving an otherwise valid notice to vacate on a tenant who made legitimate complaints about the property’s condition. 11 However, despite initial support from the Government, the bill floundered under the pressure of landlord advocates who maintain that this legislation is both unnecessary and rife with the potential for tenant abuse. 12 Although tenant advocates narrowly succeeded in resuscitating the nearly failed bill by appending an amendment to a widely supported deregulation bill, 13 the anti-retaliation law 6. This paper focuses on landlord retaliation in England and Wales. Although neither Scotland nor Northern Ireland is addressed herein, the moniker “United Kingdom” is used throughout as a convenient shorthand reference. 7. HANNAH GOUSY, SHELTER, SAFE AND DECENT HOMES: SOLUTIONS FOR A BETTER PRIVATE RENTED SECTOR 7 (2014), available at http://England.shelter.org .uk/_data/assets/pdf_file/0003/1039530/FINAL_SAFE_AND_DECENT_HOMES_...