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
 
FREE EXCERPT
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 TENANTS
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.

To continue reading

FREE SIGN UP