The RLA launched a collection of essays looking at the future of the PRS as part of its 20th anniversary celebrations.
Professor Martin Partington CBE, QC, Chair of the Dispute Service, was one of the contributors to ‘Private Renting: A Vision for the Future’. You can read his essay below.
In April 2018, the Housing, Communities and Local Government Select Committee of the House of Commons published a report on the private rented sector. One recommendation particularly caught my eye.
It read: We therefore recommend that the Law Commission undertake a review of the legislation relating to the private rented sector and provides guidance as to whether a new approach to regulation in the sector would bring more clarity for tenants, landlords and local authorities. This gives me the excuse to remind people that the Law Commission has already undertaken such an exercise. In 2001-2005, I led the Commission’s major project which resulted in publication of the draft Renting Homes Bill.
The project had a number of key objectives:
- Creating a coherent legal structure that would enable much of the existing legislative chaos to be repealed.
- Creating a legislative/regulatory framework that would be flexible, so that policy changes could be made easily by regulation, without the need for passing new legislation.
- Enabling the private rented sector to work with the council and social rented sectors so that, in partnership, they could undertake the investment needed to ensure that the rented sector was providing rented accommodation to all who wanted it.
- Aiming to make life easier for landlords – particularly in relation to the thorny issue of the repossession of accommodation which had been abandoned by tenants.
- Seeking to clarify the respective rights and responsibilities of both landlords and tenants by creating a model, plain language tenancy agreement that would accurately reflect the legal rights and duties imposed by the law.
- Designing a model statute-based agreement which would make it easier for industry bodies and advice agencies to provide information to landlords and tenants on what they could and could not do.
- Reforming the legislative framework to encourage increased investment in the build-to-rent sector.
Despite the fact that, in its consultation process, the Law Commission built a considerable degree of consensus in the property world that reforming the law on the lines proposed would be beneficial to the sector, the Government at the time did not agree. It argued that it would be too disruptive. Since the Law Commission finished its work in 2006, a lot has changed.
First, in England, the law has become more and more complex. New legislation has created new categories of tenancy, and placed new burdens on landlords. The Government has promoted a ‘model agreement’ but given it no legislative backing.
As I was writing this piece, there were press reports of a new consultation on three year minimum tenancies in the PRS. When quizzed by the Select Committee in 2018, the Minister again said that more comprehensive law reform would be just too disruptive to the market, without acknowledging the burden generated by constant detailed changes in the law. Second, the Scottish Government has also been developing the legislative framework relating to the rented sector. The law in Scotland in this area was always different from England’s – even before the devolution settlement – but they have been taking up (whether consciously or otherwise) some of the recommendations made by the Law Commission, notably relating to the compulsory use of a standard tenancy agreement. (They have also created a new tribunal for the resolution of housing disputes.)
Third the Welsh Government – who now have devolved power in relation to housing – decided it would adopt that Law Commission’s recommendation. The Renting Homes (Wales) Act was passed in 2014. Taking responsibility I don’t here want to come across as a sore loser, just moaning about lost opportunities. In the light of recent legislative developments, it would not be possible to revisit the Law Commission’s proposals without further work being undertaken. But the responses of all English Governments over the last decade have been pretty feeble.
They have not hesitated to make the regulatory framework more complex when it suited them. They should also take responsibility for making it more coherent. The reality is that politicians and civil servants in England do not take renting seriously. Nothing will be done unless the industry comes together to press for change, and to force the demand for reform onto the political agenda.
The RLA has a fantastic opportunity to lead the necessary coalition for change over the next 20 years. It will be assisted by the fact that these days, the rented sector – both private and public – is central to the delivery of housing policy. This gives them an influence they perhaps lacked 20 years ago.