Douglas Robertson Blog 4 – If you don’t know your rights, do you have them?

I pose the question because the RentBetter Wave 2 findings show that a key component the Scottish Government’s recent ground-breaking private tenancies reform has passed most tenants by.

The Private Housing (Tenancies) (Scotland) Act 2016 set out to enhance the private tenant’s rights. The rationale was that the new tenancy regime – the Private Residential Tenancy – would rebalance power relations between landlords and tenants. Tenants would receive an ‘open ended’ tenancy, rather than the six-months available through the previous Short Assured Tenancy regime, introduced way back in 1988. With a longer tenancy, tenants would now be better placed to assert their rights. These rights include having a property that meets a basic quality standard (the Repairing Standard), having any necessary repairs carried out, and being able to challenge an unfair rent rise. The new tenancy introduced a modern tenancy agreement, similar to those employed across Europe, with the rights and responsibilities of both parties clearly detailed.

Five years on, the majority of tenants are oblivious as to the tenancy they hold, so have little or no understanding of these rights. By contrast most landlords and letting agents are well-versed in the new arrangements.

This is troubling enough, but the second tranche of findings from the RentBetter project, funded by the Nationwide Foundation, also found that even where these rights were understood, many low-income tenants, dissatisfied with the general condition of their home and the repairs service their landlord provided, were still unwilling to directly challenge them for fear of “rocking the boat”. For some people, raising their concerns, or put another way, exercising their tenancy rights, directly with their landlord could lead to a confrontation, a rent increase, or worse, the loss of their tenancy.

Tenancy rights were found to operate within what may be best understood as a paternalistic context dependent on a personal relationship. This is in contrast with the government’s intended ambition, the creation of a modern commercial legal contract. When these personal relationships break down, and trust is broken, then the tenants security of tenure may be endangered, no matter their rights.

Where tenants opted to exercise their rights through raising a case with the newly established First Tier Tribunal (Housing & Property Chamber), the study found this too had also not worked out well. The newly established process, designed to be less formal than the previous court arrangements, were considered too formal, lengthy and inaccessible, so mirroring the courts they replaced. The outcomes for these tenants were also considered by them to be less than satisfactory. Worryingly, a few tenants, after successfully exercising their rights, received notices to quit from their landlords.

A wider question lies in these findings, and it is what is the point of a Parliament giving people new rights and powers if those in receipt of them know nothing about them? Better advice and information is crucial, so urgent work needs to be done so that tenants know their rights and responsibilities when they take on a tenancy, and that independent information and advice is readily available if they need support to exercise their rights.

But it is also not just a question of people knowing their rights. Laws need to be enforced. Local authorities have a plethora of powers in relation to private renting, but it appears these are not being pursued, or there is simply a lack of capacity to enforce them.

There are also questions about the accessibility of the Tribunal. With the PRS being of such poor physical condition when compared to other tenures, why are there just so few cases being taken to the Tribunal to resolve such matters, just four-percent of all the Tribunal  cases?

Perhaps the wider issue here, however, is that the culture developed within the private rented sector after 30 years of an overtly laissez-faire system takes a long time to break down. As a result, as things now stand, the evidence shows that the most financially vulnerable tenants have yet to experience any feelings of increased security tenure or enhanced rightsure or enhanced rights.

Professor Douglas Robertson