Residential possession - important updates and the current situation (COVID-19)

Rachel Garton, 5th June, 2020

These are uncertain and testing times for everyone involved in the residential lettings market. This article aims to provide some clarity for landlords on the key changes brought about by the new Coronavirus Act 2020.

Section 8 Notices

Notice Period

The Coronavirus Act 2020 (“the Act”) has been enacted in response to the Covid-19 national emergency. The Act extends the minimum notice period of a Section 8 Notice to 3 months, so Court proceedings cannot be issued against a tenant until after 3 months from the date the notice is served. Landlords must be careful to use the amended Form 3 which reflects changes made by the Act.

Recent Cases

The recent case of Captain Nigel Crighton Pease v Jeffrey William Carter, Louise Mary Carter [2020] EWCA Civ 175, (or Pease v Carter), has added clarity to the situation surrounding typographical errors in Section 8 Notices. In this case, a Section 8 Notice was deemed to be valid even though the date after which proceedings could begin contained a typographical error (“2017” rather than “2018”). Care must still be taken over the accuracy of a Section 8 Notice and attention to detail is crucial to avoid any disputes in relation to validity further down the line.

Section 21 Notices

Notice Period

Similar changes have been made in respect of Section 21 Notices and the Act has extended the notice period to at least 3 months instead of 2 months Landlords must be careful to use the amended Form 6a which reflects changes made by the Act.

Recent Cases

The Court of Appeal in the case of Livewest Homes Ltd v Bamber [2019] EWCA Civ 1174 has held that the 6 month notice period required under S21(1A) and S21(1B) of the Housing Act 1988 assumed the expiry of a fixed-term tenancy by effluxion of time, and not as a result of its premature termination under a break clause. This decision is helpful in providing guidance to landlords on the application of section 21(1A) and 21(1B) to the starter period of an assured shorthold fixed term tenancy agreement.

The case of Trecarrel House Ltd v Rouncefield (B5/2019/0499) was recently heard in the Court of Appeal and the outcome is awaited. The issue to be decided is the validity of a Section 21 Notice if a landlord has not provided the tenant with a gas safety record prior to occupation but provides one prior to service of the Notice. Non- service of Gas Safety Certificates prior to the commencement of a tenancy is a common issue and the outcome of this case will be critical to how many landlords proceed.

Possible abolition of Section 21 Notices

On 15 April 2019, the government announced that it may repeal Section 21 of the Housing Act 1988. This means that landlords will need a ‘good reason’ to evict their tenant, rather than being able to rely on the ‘no fault’ basis of a Section 21 Notice. This may be somewhat balanced by a strengthening of the Section 8 eviction process. The consultation finished on 12 October 2019 and the outcome to the public feedback is not yet available.

Possession proceedings

All ongoing housing possession actions were originally suspended for 90 days from 27 March 2020. Under Practice Direction 51Z, most current ongoing cases or any cases about to be issued cannot progress to a stage where eviction is possible.

It is however still possible to issue possession proceedings or for landlords to act upon non-payment of rent using other available remedies such as issuing a debt claim for the unpaid rent in the High or County Court.

Form N5B (claim form for possession under the accelerated procedure) and Form N11B (Defence form for accelerated possession procedure) have been amended and the updated versions must now be used.

Update - ban on residential evictions extended by 2 months (5 June 2020)

On 5th June 2020 the Government extended the suspension of evictions from social or private rented accommodation for a further two months until 23 August 2020. This take the moratorium on evictions to a total of 5 months.

All current possession proceedings will be stayed until 23 August 2020 and any new possession proceedings placed on hold until this time. There is therefore unlikely to be any possession hearing or evictions until early September 2020.

Ministers are also working on proposals with the judiciary, legal representatives and the advice sector to ensure that when evictions proceedings do recommence, arrangements, including new rules, are in place to assist the court in providing appropriate protection for more vulnerable tenants such as those tenants that are shielding.

The suspension of evictions may be extended further but the aim at the current time appears to be to transition out of these measures at the end of August to allow the market to operate at the same time as ensuring that help and support is provided to tenants where necessary.

Other updates

Tenants Fees Act 2019

The Tenant Fees Act 2019 restricts the type and amount of payments that can be required by landlords or letting agents from tenants of most private rented accommodation in England. Importantly, this Act prohibits landlords and letting agents from requiring tenants (any anyone acting on the tenant’s behalf or guaranteeing the tenant’s rent) to make any payment which is not expressly permitted. Permitted payments are listed in Schedule 1 of the Tenant Fees Act.

This has effect on when a Section 21 Notice can be validly served. The prescribed form Section 21 Notice has been updated to reflect these changes.

Civil Procedure (Amendment) Rules 2020 (SI 2020/82) made and laid before Parliament

Civil Procedure Rule 55.11 has been amended to remove demoted assured shorthold tenancies and oral tenancy agreement cases from the accelerated possession process.

Pre-Action Protocols

Two new/revised Pre-Action Protocols were introduced on 13 January 2020. There is a revised Pre-Action Protocol for Possession Claims by Social Landlords and a new Pre-Action Protocol for Housing Condition Cases (England).

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Rachel is a specialist in all areas of property litigation and landlord and tenant matters, including: tenants right to first refusal, residential leasehold enfranchisement, service charges, lease renewal litigation, commercial and residential possession proceedings and debt recovery.

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