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

With all the changes around evictions since March, it is no surprise that landlords and tenants alike are unsure of what the current rules are.  We have set out below a snap shot of the most recent position.

Residential
Section 21 notices requiring possession under an assured shorthold tenancy:
  • The main change to the Housing Act 1988 is that, 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.
  • In order to accommodate this, other changes have been made. The section 21 notice will now remain valid for 10 months (instead of the previous 6 months) from the date it was served on the tenant; or 4 months from the date specified in the notice where dealing with periodic tenancies.

All other statutory restrictions on being able to serve a section 21 notice still apply.  For instance, for tenancies granted after October 2015, the landlord cannot serve a valid section 21 notice if the tenancy deposit has not been properly protected and the tenant has not been given prescribed information, an Energy Performance Certificate, Gas Safety Certificate and the Government’s ‘How to Rent’ booklet.

Section 8 notices requiring possession under an assured shorthold tenancy:

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 behaviour, 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.

Unlike a section 21 notice, a section 8 notice remains valid for 12 months from the date of service on the tenant.

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.  There is a template reactivation notice available.

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. This regime has now been extended further until March 2021.  In relation to any proceedings which have already been issued, as with the residential possession claims, a reactivation notice will be required and a formal application if this is not done by 29 January 2021.

In addition to this, landlords are now unable to issue a statutory demand to wind up a tenant company until 31 March 2021.

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 March 2021.

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 on of our other solicitors in the Real Estate Disputes Team here.

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