There is uncertainty for everyone in these difficult times but one of the biggest worries for private tenants is the issue of their homes, and for landlords is the issue of having to pay a mortgage when there may not be any rent coming in. In this series, Rebecca Keeves addresses the temporary measures that have been put in place by the Government during this unprecedented time and the consequences for both landlords and tenants.
The information contained herein was correct at the date of publication but has now been subject to further update by the Master of the Rolls. Please find the updating information here.
What are the changes?
From 26 March 2020 the period of notice required before court proceedings can be issued to evict any tenant is extended to 3 months. In the event of a section 21 notice this is likely to be an increase of a month but for the most common section 8 notices (those based on rent arrears) it will extend the period by two-and-a-half months. At present this is the law in respect of any notice that is to be served before 30 September 2020, but the Government may choose to extend either the applicable period or the 3-month notice period.
Who is affected?
So, who is covered? Almost all tenants, whether private or social, in England and Wales. It includes all provisions under the Rent Act 1977, the Housing Act 1985, Housing Act 1988 and the Housing Act 1996. When the 3-month notice period has expired the landlord can then issue proceedings to obtain a possession order (subject to any further amendments).
Of particular note, nothing in the new law varies the Court’s discretion in such matters. It is therefore important to be aware that the mandatory grounds are still mandatory, no matter how sympathetic the Court may be to the tenant’s position. It appears that the point of the extended notice period is to give tenants the opportunity to catch up on their rent once the Coronavirus issues have resolved, or at least improved. I anticipate that matters proceeding on discretionary grounds will be treated sympathetically by the Court where there is a link to the Coronavirus pandemic. For example, if a notice is issued for rent arrears on grounds 8, 10, and 11 but by the time it comes to court the arrears are below 2 months (and therefore ground 8 would no longer apply) and the tenant states that the issue was a lack of income during this period, the Court may well look to a suspended possession order or even adjourning, be that generally or on terms. The Court will also consider pre-action steps taken and how heavy-handed the landlord has been in issuing proceedings. This may also affect the costs position. I will be giving further guidance in this regard shortly.
If a claim for possession was issued before 27 March 2020 it remains valid. However, all ongoing proceedings have been suspended and you will therefore either have your hearing cancelled (if already listed) or your claim stayed (paused) if there is not yet a hearing date.
At present, this suspension is for a period of 90 days so mark your diaries and chase up your case if you haven’t heard anything shortly after that. The Government may choose to extend this period and if so I will do an updating brief. What is unclear is what will happen to those cases where the papers have been sent to court but it has not yet been processed by the court. The Government guidance is that matters won’t be able to progress to the point where someone can be evicted. Presumably this means the granting of the possession order. It may well be that claims which have been delivered to court will still be issued but with a hearing date to be confirmed. The Guidance from the Lord Chief Justice states that judges dealing with any possession claim during the crisis must have in mind the public health guidance and should not make an order that risks impacting on public health. At present this will not affect new possession claims due to the suspension. This guidance really comes into play in respect of applications to suspend a warrant but it appears to me that where possession was granted on mandatory grounds, the Court is still bound to give no longer than 42 days from the date of the order. That may change in due course.
As with all aspect of this pandemic, the future is not predictable. My personal opinion is that the 30 September 2020 day is likely to be extended, as is the suspension of proceedings. I will do further briefing notes as matters progress.
Further notes will follow in the next few days containing further guidance.
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