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Latest Covid-19 rules on evictions for residential and commercial property

Residential

From 21 September 2020, the rules changed yet again for residential evictions under the Housing Act 1988.

If you would like to serve notice on your tenant using the Section 21 procedure (i.e. the ‘no fault’ procedure), you must give your tenant at least 6 months’ notice.

If you would like to serve notice on your tenant using the Section 8 procedure (i.e. where the tenant has breached the terms of the tenancy), then you will still need to give 6 months’ notice in most cases.  The exceptions to this are:

  1. Anti-social behavior, where the notice period will be between 2 weeks and 1 month depending on the type of tenancy and specific circumstances.
  2. Where there are 6 months’ worth of arrears, a minimum of 4 weeks’ notice is required. If there are less than 6 months’ of arrears, the 6 month notice rule applies.
  3. Where the tenant has passed away or is in breach of immigration rules, then a minimum of 3 months’ notice is required.

The 6 month notice rule will be in force until 31 March 2021.

Issued Claims
Before 3 August 2020

If you issued possession proceedings before 3 August 2020, but have not yet had a Court hearing, you will need to inform the Court that you wish to proceed with your claim. This is done by sending a reactivation notice to the Court and serving a copy on your tenant.

It is important to note that, without sending the Court the reactivation notice, your case will sit in the Court system and won’t proceed. If you do not serve a reactivation notice by 4pm on 29 January 2021, your case will be stayed and you will need to make a formal application to restore it.

When serving the reactivation notice, you will need to give details and information, to the best of your knowledge, as to the circumstances of the tenant and how they have been affected by Covid-19. For some landlords, this may prove impossible – if you do not have the slightest idea, then you will simply have to say so.

If you have received case management directions, then you will also need to file and serve a reactivation notice but also attach a draft order for alternative directions or a statement that no new directions are required.

After 3 August 2020

Any claims made after 3 August 2020 should proceed in the usual way. However, landlords should brace themselves for significant delays due to the sheer number of possession cases currently at Court.

Given the significant delays in obtaining possession, it may be best to approach your tenant to figure out a better alternative until things go back to normal.

Commercial

The rules surrounding Covid-19 for commercial landlords and tenants have largely stayed the same.

Under the Coronavirus Act 2020, from 26 March 2020, landlords have been unable to forfeit a lease for non-payment of rent. Unfortunately for commercial landlords, this regime has now been extended until December 2020.

In addition to this, landlords are now unable to issue a statutory demand to wind up a tenant company until 31 December 2020.

Should a landlord wish to exercise its right to recover rent under Commercial Rent Arrears Recovery (CRAR), a tenant will need to be in at least 189 days’ worth of rent arrears. This will apply until 31 December 2020.

Again, it is advisable for landlords and tenants to engage in discussion to see whether an agreement can be made in relation to rent. If any such agreement can be reached, it would be wise to document these in the form of side letter to the lease.

If you are a landlord or a tenant and require any advice, then please contact Alexander Clarke in our Real Estate Disputes team on +44 7557 804715 or email at alexanderclarke@boltburdon.co.uk

You can also contact one of our other solicitors in the Real Estate Disputes team here.

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