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 o f 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 observatio nal work of Matthew A. Desmond in Eviction and the Reproduction

of Urban Poverty, 118 AM. J. SOCIOLOGY 88 (2012).

2. This hypotheti cal is adapted from a report of the Citizens Advice Burea u

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.