1. The Coronavirus Act 2020 received Royal Assent on 25th March 2020. It passed swiftly through the law-making process for obvious reasons. Never in recent times has the country faced a global pandemic of this proportion and emergency measures were required.

2. At a time when the collective mantra is stay at home pressure has built such that amendments and further changes have been made to the provisions originally set down.

3. On 18 March 2020 the government promised the following:

a. “The government has announced a radical package of measures to protect renters and landlords affected by coronavirus. As a result, no renter in either social or private accommodation will be forced out of their home during this difficult time.

b. Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a 3 month period. As a result of these measures, no renters in private or social accommodation needs to be concerned about the threat of eviction”.

4. The Bill itself, before Parliament on 23rd March 2020 focused primarily on extensions to required notices for possession across the principal housing statutes until 30th September 2020.

5. A cursory analysis revealed the wholescale inadequacy of the same standing alone in the current crisis. Following immediate pressure from many actors in the sector the Government has moved further to meet its original stated intention.

6. So, from 27th March 2020, the Master of the Rolls with the Lord Chancellor’s agreement has stayed all on-going possession actions brought under CPR 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession for a period of 90 days [Practice Direction 51Z(PD) via CPR 51.2]. Claims for injunctive relief are not subject to the stay. The Practice Direction ceases to effect on 30th October 2020.

7. This will enable people to follow the health guidance and to stay in their homes (including not attending court) and covers residential tenancies and mortgagees and those licensees covered by the Protection from Eviction Act 1977.

8. Those provisions of course sit within a context of anxieties of health amidst  unprecedented economic uncertainty in recent times and in which the packages of financial support set out remain unclear as to reach and effect.

9. The Government has provided guidance to landlords and tenants as to seeking agreement where arrears accrue as a consequence of Covid-19. It will further amend the pre-action protocol on arrears and extend this to the private rented sector.  

10. Furthermore, £500m is to be allocated to assist with hardship for renters alongside increases in April in Universal Credit and Housing Benefit and Local Housing Allowance being available to cover 30% of rent.

11. It is notable that greater protection is given to business tenancies by s.82 as this operates as a block on forfeiture during the relevant period. This is in accordance with the government’s efforts to support small businesses during the virus outbreak. There is no equivalent protection in relation to forfeiture of residential accommodation.

12. Section 81 of the Act is headed “Residential tenancies in England and Wales: protection from eviction” and reference is made to Schedule 29 where the provisions about notice periods are contained.  

13. Ordinarily a landlord seeking to recover possession of residential accommodation must give notice to the tenant before they start proceedings. The period varies from case to case. So, a notice to quit (applicable to Rent Act protected tenancies) must be 4 weeks and a notice of intention to bring proceedings for a secure (i.e public sector) tenancy or assured non-shorthold (i.e. private sector post 1988 tenancy)  is usually between 2 weeks and 28 days. In cases involving nuisance proceedings can start immediately. 2 month’s notice is needed for an Assured Shorthold tenancy.

14. In the case of an assured tenancy or a secure tenancy the court can dispense with the service of a notice if it is just and equitable to do. For statutory tenancies under the Rent Act 1977 there is no requirement of notice. 

15. The proposed changes increase the required notice to 3 months in place of the current, shorter periods.  The new notice periods only apply for notices served between now and 30th September 2020 (“The relevant period”) when it is presumably hoped that the virus will have departed, petered out or a vaccine has been found.

16. The amendments only apply to notices served during this “relevant period”.  They do not apply to cases where the landlord has already served notice or where the landlord has already started proceedings. This is a serious issue because it often happens that a landlord will issue a notice, or even start proceedings, but then negotiate payment arrangements with the tenant.

17. Tenants are obviously much more likely to fall into arrears and so fail to meet the terms of any such agreement even though they would have been able to comply had they not lost work or income because of Covid--19.

18. The amendments and extensions to the pre-action protocol private renters will materialize, but in due course landlords may of course proceed to start or continue with proceedings against tenants whose arrears have built or been accelerated by Covid-19.

19. In addition the relevant period is 6 months but the notice requirement is only 3 months. The period of 6 months obviously contemplates that special protective measures are needed for the whole of this time. It is therefore difficult to understand the reason for limiting the notice period to 3 months. A landlord will be able fully to comply with this yet tenants will still lose their homes within the period when exceptional protective measures are warranted.

20. Both the 3 month requirement and the relevant period may be extended.

Closer analysis of the amendments

Rent Act 1977

21. S5 of the Act is amended to require during the relevant period a three - week notice period for protected tenancies. This is in place of the four week notice to quit previously.

22. For the relevant period it will now be necessary to serve a notice of intention to commence possession proceedings on a statutory tenant (previously there was no requirement).  New sections (4A -F) are inserted into the Act requiring three months, notice to be given in writing. The notice must (4C): <!--[if !supportLineBreakNewLine]-->

a) describe the statutory tenancy

b) state the address , name of the tenant, name and address of the landlord

c) state that the landlord intends to start proceedings

d) state the ground/s relied upon and the reasons why

e) state the date on or after which the landlord intends to start proceedings

f) explain that the landlord is prohibited from relying on the notice  unless three months, notice is given.

23. The notice can be left at the premises or sent to the address ( 4D). Accordingly proof of receipt is not essential.

24. The landlord will have to satisfy the court that there has been compliance with the notice requirements and only the grounds relied upon in the notice can be pursued unless the court gives permission (4E).

25. As with secure and assured tenancies the court may dispense with the notice requirements for statutory tenancies if it is just and equitable ( 4B). The same established case law will apply in these applications: see for example: Fernandes v Parvardin (1982) 5 H.L.R. 33, CA and Boyle v Verrall [1996] E.G.C.S. 144, (1997) 29 H.L.R. 436 . Landlords may seek to argue that the loss of income alone is a basis for dispensation but this is unlikely to gain traction at a time when the purpose of the new legislation is supposedly to protect tenants from eviction.

26. Although notices served on statutory tenants in the relevant period are likely to be few and far between the fact that the notice is not in a prescribed form may mean that there will be some scope to challenge validity.

Housing Act 1985

27. Section 83 of the Act is amended to require a three - month notice period. This applies equally to cases involving the nuisance ground (Ground 2) where previously no notice was required.

28. Section 83 ZA of the Act which deals with notices in relation to proceedings for possession on absolute ground for anti-social behavior is similarly amended requiring three months, notice.

29. At a time of heightened restrictions on liberty and potential civil unrest it is perhaps surprising that the three month notice period has been applied even in these cases however it is likely that in a serious case the court will dispense with the need for service.

30. Possession of flexible tenancies under section 107D of the Act is also subject to a three month notice period.

Housing Act 1988

31. All of the various notice periods under s.8 are extended to three months including ASB grounds save that there is a dispensation provision as with the HA 1985,s.83.

32. s.21 is amended so that notice given to an AST during the relevant period is three months.

Housing Act 1996

33. Sections 128 and 143E are amended to ensure that introductory tenancies are subject to a three month, notice period.     

Prescribed forms

34. The amendments in paragraphs 10-12 of Schedule 29 of the Coronavirus Act 2020 will mean that all of the prescribed forms of notice mentioned will need to be amended. Potentially this will form a basis of challenge if the landlord does not use the new prescribed form particularly in the case of a mandatory ground or s.21 where there is no dispensation.

Conclusion  

35. The immediate practical difficulties of possession hearings already listed has been lifted.

36. But in due course housing practitioners will need to hone their arguments in relation to reasonableness in discretionary cases. If rent arrears have arisen as a result of loss of work or illness during the crisis this must surely form the basis of a good reasonableness defence. 

37. Cases involving anti-social behaviour might feature conflicts between neighbours accelerated by home confinement.  Allegations could arise against vulnerable tenants whose mental health has been affected as a result of restrictions and the inability to access social support and services.

38. Applications for anti-social behaviour injunctions may rise, with the attendant danger for possessions on mandatory grounds and it is likely that unlawful evictions will increase, by landlords reacting to perceived risk from tenants or disputes over arrears related to Covid-19.

39. Aside from the medical crisis, the economic and social effects of Covid-19 will be immediate and ultimately far-reaching. As this extraordinary period is showing, the importance of ensuring legal protection of residence as a fundamental necessity to our society’s functioning has never been greater.

This article was produced by Jim Shepherd and John Hobson, members of our Housing, Social Welfare and Property team.

To contact Jim Shepherd's and John Hobson's Practice Manager Rachel Finch, please email r.finch@doughtystreet.co.uk or call 020 7404 1313.