Residential possession proceedings; No evictions over Christmas and Notice periods change.

Residential possession proceedings; No evictions over Christmas and Notice periods change.

Housing Secretary Robert Jennick announced on 11th September 2020 that there will be a “truce” on enforcement action for tenants facing eviction in England and Wales over the Christmas period.  He has also said evictions will not be enforced in areas subject to local lockdowns.  Bailiffs will be told that they should not enforce Possession Orders over Christmas other than in the most serious circumstances such as Anti-Social Behaviour and Domestic Abuse.  The dates affected have yet to be announced.  

Although this is a further restriction on Landlords obtaining possession of their properties, in practice Bailiffs’ appointments have generally not been arranged for the second half of December and the first week or two of January for many years as previously the Courts received numerous applications for stays of Bailiff’s Appointments during December to avoid evictions taking place immediately before Christmas .

With Possession proceedings not being dealt with or heard before the 20 September 2020, a substantial backlog of cases already in the Court system and numerous new cases anticipated to be filed after 20 September to reflect the increase in rent arrears, a substantial period time is likely to pass before possession proceedings applied for after 20 September 2020 will reach the point of a Bailiff’s Appointment being set, probably in 2021 at the earliest in any event.

The Government and the Courts have re-visited the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction)  (Amendments) (England)  Regulations 2020 with regard to possession proceedings following pressure from landlords to vary the three month notice period applying to almost all possession proceedings.  

The changes described below came into effect on Saturday 29 August 2020 and will remain in effect until 31 March 2021, although there may be changes in the future. 

Changes include the following:-

  1. With regard to Section 21 Notices (no fault termination of Assured Shorthold Tenancies), the period of Notice is now six months, not the original two months or subsequent 3 months.  This means that anyone in particular wishing to sell their property with vacant possession to take advantage of recent stamp duty relief announced by the Government will not be able to rely on the  Court possession procedure to obtain vacant possession  before that relief comes to an end on 31 March 2021.  Proceedings must be issued within 10 months from service of the Section21 Notice. 
  1. The change in the length of the Section 21 Notice period will also lead Landlords to re-consider how they approach issues of rent arrears.  Previously landlords could have taken the option of serving a Section 21 Notice on a no fault basis and then issuing Accelerated Possession proceedings to get possession of the property .  Now, if the arrears are less than six months of the value of the rent then the Landlord will have to give six months’ notice under Section 21 either as above or under the rent arrears ground as detailed below. The Government intends this to encourage a dialogue between landlords and tenants to find alternative arrangements to address rent arrears.  
  1. With regard to the Rent Arrears Ground, the length of time that applies to the Notice seeking possession depends on the level of arrears.  Under Grounds 8, 10 and 11 of Schedule 2 of the Housing Act 1988, if the arrears at the time the Notice is served are more than the equivalent of 6 months’ rental instalments then the notice period is 4 weeks. If the rent arrears are less than six months’ instalments then the Notice period is six months. Consideration will have to be given as to whether or not Grounds 7a and Ground 14 under Schedule 2 of the Housing Act can be relied on as the shorter notice period under those grounds will take precedence.  
  1. Ground 14 relates to anti-social behaviour which includes the tenant’s behaviour to both occupiers and neighbours and causing a nuisance or abuse to agents and affecting their ability manage the property. Under this ground, proceedings can be issued as soon as the Notice has been served. If there are also rent arrears and other grounds that apply then those Grounds can be relied on in those proceedings even if the notice period under those grounds has not passed. We would emphasise that the Grounds for Possession under Ground 14 have to be genuine. It may be that if there are serious anti-social behaviour then Injunction Proceedings are also used. If Ground 7a is also relied on the notice period is one month.   
  1. With regards to the other Grounds under Schedule 2 of the Housing Act 1988 the revised periods are as follows:-
  1. Grounds 1-6 – six months (from 3 months) 
  2. Ground 7 – (tenant has died and no one is residing at the property or claiming succession) three months as before 
  3. Ground 7a – (the tenant convicted of a serious criminal offence) reduced to 1 month from three months. 
  4. Ground 7b – (Right to a Rent Notice) remains three months 
  5. Grounds 8 , 10 and 11  (rent arrears) – see above 
  6. Grounds 9 (alternative accommodation), 12 (breach of a tenancy obligation) and 13 (Waste or neglect)  – six months 
  7. Ground 14  (Nuisance or annoyance or criminal conviction) – reduced from three months to Issue after Service of notice – See above 
  8. Ground 14a (Violence to occupier –social landlord)  and 14z (riot)  –– two weeks 
  9. Ground 15 (deterioration of furniture)  and 16 (premises let to employee) – six months 
  10. Ground 17 (granted a tenancy by way of a false statement) – two weeks 

Notices served with the correct notice period at the time of issue remain effective and do not have to be reissued but proceedings relying solely on a s21 Notice must be issued within 6 months of service and if a new s21 notice now has to be served the notice period is 6 months. .  

Please also note that if a tenancy has a Break Clause allowing for example a Landlord to serve two months’ Notice after the original six months of the tenancy,  the statutory provisions override the contractual provisions so if the landlord has to give two months’ Notice ( by way of a Section 21  Notice ) under a Break Clause, the Notice period is now six months under the Regulations, not the two months expressed in the tenancy. 

 The overall effect of this is that if there is a six month tenancy a Section 21 Notice cannot be served within the first four months of the tenancy. The Notice can be served at the beginning of the fifth month but will last for six months so that in effect the minimum period of any tenancy will now be ten months before proceedings can be issued.   

In any possession proceedings the landlord Claimant will have to obtain and provide details of the effect of the Coronavirus on the tenant as part of the Application process.

With secure tenancies, there are similar provisions. Under Ground 1 of Schedule 2 of the Housing Act 1985, if there are 6 months arrears or more, then the notice period is 4 weeks (where no other Ground is specified), otherwise the notice period is 6 months. Whereas for Ground 2 (anti-social behaviour), court proceedings for possession can be begun immediately. Please feel free to contact Erika Barnett if you have any queries in relation to secure tenancies. 

If you have any queries please do not hesitate to contact us.