The impact of the Coronavirus Pandemic has been far reaching, with changes in legislation preventing private residential tenants from being evicted from their homes. Here, head of Dispute Resolution Andrew Mawdsley explains what is involved.
Housing law was complex enough before the advent of Coronavirus and The Coronavirus Act 2020 (“CVA 2020”). CVA has introduced some new considerations for the housing sector.
With a view to protecting Tenants from eviction during the pandemic, the notice periods for s. 8 and s. 21 notices issued during the “Relevant Period” prescribed by CVA 2020 (26th March 2020 - 30th September 2020) have both been extended to 3 months. The Government has produced relevant guidance, including details of the amended possession procedures under s.21 and s.8 of the Housing Act 1988.
Section 8 Notices
Before CVA 2020, where there was a claim for recovery of possession based on rent arrears (grounds 8, 10 and 11 of schedule 2 of the Housing Act 1988), proceedings could be started after 2 weeks from the date of service of the notice. That short period has now been extended to 3 months for s.8 Notices served within the Relevant Period. A considerable change which will no doubt be a source of significant frustration for Landlords.
There is a new prescribed form of Notice, which must be used. Landlords will need to get this right if they seek to serve notice during the Relevant Period.
Section 21 Notices
Similar provisions apply here. The previous 2 months’ notice period has been extended to 3 months for Notices served during the Relevant Period. Again, a new prescribed form of Notice has been produced, which will need to be used.
Is it 3 months, is it 6 months or even longer?
CVA 2020 provides that notices served under sections 8 or 21 of the Housing Act 1988 may be extended up to a period of 6 months. The relevant provision can be found at paragraph 13, schedule 29, CVA 2020.
Not only that, but the power to extend maybe exercised more than once, meaning that the notice periods could be extended further still.
Different provisions could apply to different areas and so the situation could become even more complex.
I served my Section 8 or Section 21 Notice before 26th March 2020 – can I recover possession?
Not yet. Whilst possession claims against trespassers and those who occupy by way of a licence or Common Law Tenancy (in our experience few and far between), landlords need to be aware of PD51Z.
PD51Z is a Practice Direction which came into force on 27th March 2020 and its effect is, in a residential sphere, to:
- Stay (put on hold) possession proceedings brought under CPR part 55 (Possession Proceedings); and
- Stay proceedings seeking to enforce an Order for Possession - for example by a warrant or a writ.
The period of the stay was initially 90 days, but this has now been extended to the 23rd August 2020. It may well be extended again as the pandemic situation develops.
Therefore, in effect, even if a landlord issues proceedings now, the court will not deal with the claim or make an order requiring the tenant to leave before 23rd August 2020.
Can Landlords pursue debt claims?
Yes, they can. There is nothing within the provisions that prevents a debt claim being pursued.
However, regulations have been issued - the snappily titled “The Taking Control of Goods and Certification of Enforcement Agents (amendment) (Coronavirus) Regulations 2020 (SI2020/451)”.
These regulations came into effect on 25th April 2020 and prevent enforcement by landlords including taking control of goods at residential premises and on highways. The regulations end on 23rd August 2020, as things stand. The thinking behind these regulations is to protect Enforcement Agents, given social distancing regulations. Other methods of enforcement, such as by telephone or at business premises are still permitted.
The position for landlords seeking to recover possession for rent arrears is therefore bleak at the moment. There is non-statutory guidance on the subject which can be found on the Government website.
Landlords can serve their (new form) notices but there is still the extended notice period to contend with. There is then the question of the moratorium on residential possession proceedings until the 23rd August 2020 to consider.
The situation is continuing to change around us but one thing is for certain at present – there is virtually no scope to secure possession against a tenant until 23rd August 2020 and possibly beyond.
For the sake of completeness, possession proceedings, in terms of default on a mortgage, are also covered by the regulations and CPR PD51Z.
The general public will be familiar with the prospect of a mortgage holiday. This is by no means a given automatic right, but many lenders have been offering this facility to borrowers.
Andrew Mawdsley is Head of Berwins' Dispute Resolution team. He is a Deputy District Judge and a highly experienced commercial litigation lawyer.