Residential Possession cases - updated rules

On 29 August the Government made further changes to the notice periods which a landlord needs to give before starting possession proceedings to recover residential property let on an Assured Shorthold Tenancy (AST).

Before the coronavirus pandemic, so called “no fault” section 21 notices gave the tenant two months’ notice to leave. Where there were rent arrears or other breaches of the tenancy the landlord could give as little as 2 weeks’ notice, with a section 8 notice.

That notice period (for both types of notice) was extended to three months under the original provisions of the Coronavirus Act 2020. Therefore for notices issued between 26 March to 28 August 2020, the period is three months and this is unaffected by the changes made on 29 August.

However from 29 August, landlords must now give the tenant six months’ notice before possession proceedings can be commenced, unless any of the following exceptions apply:-

  • Where there is anti-social behaviour, domestic abuse, rioting and false statement - the required notice periods have returned to their pre-Coronavirus Act 2020 lengths, typically between two weeks and one month.
  • Where at least six months of rent is unpaid - a minimum four-week notice period will be required. But, if less than six months of rent is unpaid, then the notice period remains six months.
  • Where a tenant has passed away or is in breach of immigration rules and does not have a right to rent a property in the United Kingdom - a minimum 3- month notice will be required.

These changes will remain in force until at least 31 March 2021.

It is worth remembering that a landlord cannot evict a tenant based on the notice alone – they must then obtain a Court possession order, by commencing possession proceedings.

Previously a s21 Notice was valid for 6 months from service – meaning that the landlord did not need to commence possession proceedings immediately the date for leaving passed. The recent changes mean that where a landlord gives a tenant a valid Section 21 notice after 29 August 2020, the notice will now remain valid for an extended period of 10 months from the date it is given to the tenant or 4 months from the date specified in the notice as the date after which possession is required, depending on the circumstances.

Existing possession proceedings which have already been issued and are within the Court process were put on hold back in March. Originally this “stay” was extended until 23 August, but it has now been extended again to 21 September. For those cases it will now be necessary for the landlord to provide the Court with an update on the tenant’s circumstances and the effects of Covid-19 in the form of a “reactivation notice” before the case can be heard by the Court.

These further extensions to both the notice periods and the stay, coupled with the inevitable backlog in the Court system could mean significant delays in landlords being able to obtain possession orders. It is proving difficult to strike a balance between tenants who have genuinely suffered as a result of covid, and landlords who are suffering because they need their properties back for whatever reason, or are themselves suffering because of arrears.

For further advice contact Jonathan Hardiker or Suzie Fisher at our Kendal office.

Published 1 September 2020

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