Both the Government and the Law Commission have advocated a consumer-orientated approach to address the problems faced by private tenants. According to the Law Commission, a 'consumer protection' approach focuses on the contract between the landlord and the occupier and incorporates the consumer protection principles of fairness and transparency. The Law Commission has stated 'many landlord-tenant disputes currently arise from ignorance' and a written contract setting out the parties’ rights and obligations is therefore important. According to the Government, longer tenancies would provide a form of consumer protection.
In a recently published paper, (E Walsh, ‘What's Law Got to do with it? Is Consumer Law the Solution to Problems Faced by Student Tenants?’ (2021) Legal Studies), I consider the extent to which a consumer protection approach is helpful for student tenants. It is first necessary to consider the nature of the problems they face. Some students live at home with their families, but most occupy two main types of property: purpose-built student accommodation (PBSA) and shared houses in the private rented sector (PRS). Issues of late completion of buildings in PBSA have been highlighted in the press. In addition, students sometimes experience ongoing repairing problems. In the PRS, the main issue is failure to repair.
Photo by Emily Walsh
As advocated by the Law Commission and embodied in the Consumer Rights Act 2015 (CRA), a consumer approach of fairness and transparency may well be of value to students in PBSA. Students occupying privately-owned PBSA (rather than university-owned PBSA) are likely to be tenants, but the relationship between the landlord and the student appears to be much more contractual than proprietary. For example, students can sometimes arrange to move rooms, and halls of residence frequently have shared facilities and services, including cleaning. The tenancy agreements are often lengthy with many terms. When things go wrong in PBSA, it is often the terms of the contract that students will look to for a solution. However, contracts did not assist much when students were faced with late completion. When providers included clauses relating to alternative accommodation, they were sometimes widely drafted, allowing considerable flexibility concerning where the landlord temporarily housed the students and for how long. Tenants could not challenge the terms of the standard form contract. Other contractual mechanisms such as the doctrine of frustration or repudiation were also unhelpful. These tenancies were not frustrated as delay did not so significantly change the nature of the contract as to discharge it (Davis Contractors Limited v Fareham District Council). Furthermore, although several weeks in temporary accommodation harmed students' experiences of the first weeks of university, the delays were not sufficiently long to enable a successful repudiation argument.
The behaviour of private providers of PBSA is to some extent governed by the ANUK/Unipol ‘National Code of Standards for Larger Developments for Student Accommodation Not Managed and Controlled by Educational Establishments’. The Code is voluntary, but most providers apply it. However, the Code did little to assist students where accommodation was delayed, providing only for suspension of rent and payment of expenses. When Unipol investigated providers who did not deliver accommodation on time, they found that 8 out of 15 had not complied with the Code. Unipol proposed amending the Regulations to allow for students to repudiate their contracts where providers do not deliver the accommodation on time. However, Unipol did not embody this change in the 2021 Code. In any event, repudiation is only helpful to students who can, at short notice, find somewhere else to live.
Although the CRA 2015 applies to contracts between PBSA providers and students, neither the transparency nor the fairness provisions assisted students where accommodation was unfinished. How then does a consumer approach help students in PBSA? Perhaps consumer redress might be the answer. Students facing problems in PBSA where the provider is not the university can complain to the National Codes Administrator (NCA). The volume of complaints made by students to the NCA is growing year on year, from only one complaint in 2005 to 83 in 2018. However, as a percentage of the total number of bed spaces, this remains relatively low. On the basis that students are somewhat reluctant to complain to the NCA, the Government's proposal to extend access to an ombudsman scheme to tenants in the PRS is unlikely to prove popular, especially when the ombudsman process is relatively slow, and the desired solutions need to be provided quickly.
Copyright University of Portsmouth
Students living in the PRS face different issues. Here, as with many tenants in the PRS, the problems often relate to disrepair. Currently, redress is found either in the Housing Health and Safety Rating System (HHSRA) via a complaint to the local housing authority (LHA) or via an action for breach of the Landlord and Tenant Act 1985 (LTA). While amendments to the LTA 1985 made by the Homes (Fitness for Human Habitation) Act 2018 (H(FHH)A) have addressed some of the shortcomings of the LTA 1985, most notably concerning the frequent problem of mould, the extent to which the new provisions will assist student tenants is questionable. Although the H(FHH)A 2018 requires that a home be fit for human habitation at the commencement of the term, in reality, the landlord is only required to act once he or she has been notified in writing of the complaint. Once notified, the landlord must act within a 'reasonable' time, and there is no statutory guidance on what is reasonable. Where a landlord fails to act, the method of redress is for the students to issue proceedings in the county court. This process is complicated as the Pre-Action Protocol for Housing Disrepair Cases presupposes the instruction of an expert and completion of a Schedule of Disrepair. The complexity of the law and procedure makes legal advice desirable. Such advice is difficult to access as even where Legal Aid is available because the disrepair results in serious risk of harm to health, the tenant may live in a 'legal aid desert' in which there are no local lawyers available to undertake legal aid housing work. Complaining to the LHA has the advantage of delegating responsibility for action to a professional body. However, some LHAs are much more proactive than others, resulting in an inconsistent approach to the use of enforcement powers. This inconsistency is illustrated clearly in a report on enforcement against rogue landlords in London produced by Pidgeon in 2016.
The CRA 2015 may not offer much help here for two reasons. First, the problem is often not with the contract itself. The obligation to repair is implied into the contract by the Landlord and Tenant Act 1985, so all tenants in the sector benefit from these provisions. The issue is with enforcing the provisions. Secondly, the CRA 2015 applies to traders and consumers, and it may be that a 'hobby' landlord who owns one or two properties is not classified as a 'trader'. Proposals for an ombudsman may assist but, as previously stated, while this process may be quicker than litigation, it may be too slow to help students who are only occupying the property for 10 months. Furthermore, students are only likely to access an ombudsman where the landlord is reluctant to comply with his or her obligations, and where this is the case, the landlord may not comply with any order made.
Copyright University of Portsmouth
It is difficult to envisage a consumer approach of the type advocated by the Law Commission and the Government that will solve the problems faced by student tenants. Failure to deliver accommodation on time in the PBSA and repair in the PRS will not be solved by transparency and fairness of contractual terms. Improved communication as required in the new PBSA Code will help but will not prevent late completion of student housing and the resultant impact on students' lives. Problems of repair are likely to subsist unless the requirement to provide accommodation fit for human habitation at the commencement of the term is realised. The only way to guarantee that accommodation is fit for habitation is certification of fitness by inspection. Julie Rugg and David Rhodes have suggested property inspections along the lines of an MOT. Such a scheme would require, at the very least, a registration system and possibly licensing of landlords, something currently only required in England for Houses of Multiple Occupation. Universities could also assist by creating their own accreditation schemes, following the example of Manchester University. For students in the PRS, these schemes can go beyond fitness for habitation to provide easy to access complaints systems and mediation. They may also award accreditations and ratings for accommodation that is 'international friendly' and 'disability compliant.' However, licensing, inspection, and university accreditation schemes are likely to be costly and raise the further question of who will pay.
How to cite this blogpost (Harvard style)
Walsh, E. (2021). Consumer Law Solutions for Student Tenants. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2021/05/consumer-law-solutions-student-tenants (Accessed [date])