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Following initial guidance issued by The Ministry of Housing, Communities & Local Government, the government had committed to work with the judiciary to explore a pre-action protocol for claims for possession by private landlords. It was thought this would be done by extending the current protocol in place for social landlords, to private landlords.
However, this has not happened, and a recent update on government guidance suggests that they are now exploring the most effective way to encourage private landlords and tenants to work through issues together before taking action through the court.
At the time of writing, further details have yet to be announced regarding any new protocol but a new Practice Direction (PD) 55C has been created as part of the Civil Procedure Rules (CPR) which will apply in England and Wales. The new PD details how possession claims will proceed following the end of the stay on possession proceedings that ended on 20 September 2020. See what happens after the current eviction ban is ended for further details.
This legislation still has a significant impact on landlords’ rights to evict a tenant. The government has released guidance on the legislation that can be summarised as follows:
The Act has not stopped landlords exercising their right to serve a notice on their tenants requiring possession either via a Section 21 and/or a Section 8 notice (often known as a ‘notice to quit’ under the Housing Act 1988). In short, the new legislation requires landlords to give a longer notice period.
The notice requirement was initially extended on 26 March 2020 requiring landlords to serve three months’ notice irrespective of whether a Section 8 or Section 21 notice was served. In England a further amendment to the notice period was announced by the government and it was confirmed on Friday 28 August 2020 that, as of 29 August 2020, the notice period for Section 21 notices was increased from three months to six months.
However, the notice required for Section 8 notice ranges from two weeks to six months depending on reasons for possession. For example, in cases of at least six unpaid months’ rent, the landlord is required to give four weeks’ notice, while if rent outstanding is less than six months the notice requirement is six months.
The Ministry of Housing, Communities and Local Government published a technical guidance for landlords on the provisions of the Coronavirus Act 2020 that can serve as a handy guide for landlords and also provides a useful table with the minimum notice requirement for Section 8 notice for all grounds.
For properties in Wales, the three months’ notice has been extended to six months which will apply to any notices issued on or after 24 July 2020 under Section 21 and Section 8 of the Housing Act 1988 (except those that specify grounds 7A or 14 – relating to anti-social behaviour).
The changes to the notice periods in England and Wales detailed above are now in force until 31 May 2021 in England and 30 June in Wales.
Restrictions are imposed on evictions until 31 May 2021 in England and 30th June 2021 in Wales in that there is a ban on bailiff evictions save for limited circumstances.
For discussion on individual claims, please contact your case handler who will advise how to proceed. This may include issuing a new notice to quit and other steps such as attempting to agree a payment plan.
Landlords are still able to issue Section 8 and Section 21 notices, but are encouraged to work with the tenants on a resolution where possible. The government guidance states:
“Where tenants do experience financial difficulties as a result of the pandemic, the government is clear that landlords and tenants should work together and exhaust all possible options – such as flexible payment plans which take into account a tenant’s individual circumstances – to ensure cases only end up in court as an absolute last resort.”
Previously the government stated that it is working with the Master of the Rolls to widen the existing ‘pre-action protocol’ on possession proceedings for social landlords, to include private renters and to strengthen its remit. This hasn’t happened but, there is a new PD 55C as noted which will apply to possession proceedings from 20 September 2020 and this provides guidance on how these claims will proceed following the expiry of the stay on possession proceedings.
Therefore, if you are still having issues with your tenant, you may be able to serve a notice to quit to start the eviction process. However, you should take advice to ensure this is appropriate in the circumstances.
As stated above, this provides guidance on how possession claims will proceed following the expiry of the stay on possession proceedings. Therefore, if you are still having issues with your tenant, you may be able to serve a notice to quit to start the eviction process.
However, you should take advice to ensure this is appropriate in the circumstances. Following the expiry of a notice to quit, landlords will have to issue possession proceedings in accordance with part 55 of the CPR to recover possession of their property.
The PD 55C confirms the following steps that landlords will have to follow should they wish to proceed with a possession claim in court:
The new PD also states that the standard period between issue of a claim form and a hearing which would usually be no more than eight weeks is suspended.
These new rules apply in England and Wales and will be in force from after 20 September 2020 until at least 30 July 2021, following an initial extension.
On 1 Feb 2021 the government has launched the free Housing Possession Mediation pilot scheme which is expected to run for six months and provides support to landlords and tenants in resolving disputes before a formal court hearing takes place.
It is likely that some tenants will default on rent due to a drop in income. An alternative to serving a notice to quit is to enter into a temporary agreement with your tenant for a reduction in rent for a short period with a payment plan to pay off the arrears.
DAS Businesslaw includes a ‘Covid-19 Landlord and Tenant Payment Plan’ designed to help landlords with tenants who have suffered a drop in income, and aren’t able to pay the rent over this current time. You can access DAS Businesslaw via the activation code found within your policy documentation.
How to register
Visit DAS Businesslaw
Our landlords are able to obtain the latest legal advice via DAS Law using the number in their policy documentation. In addition, our website will be updated regularly with landlord’s frequently asked legal questions.
Customers also have access to additional templates and guides on www.dasbusinesslaw.co.uk which can be accessed via the activation code in your policy documentation.
Your legal obligation to carry out maintenance has not changed. You must take all reasonable steps to carry out maintenance if you are contacted by your tenant. The key is to plan ahead. If someone is self-isolating then book in a time that suits all. If external maintenance is required then (with the tenant’s permission) you can do this even if the occupants are self-isolating.
Again the key is planning this in. Build up your list of contractors and check their status/ability to work regularly.
Yes. Your obligations to carry out maintenance or perform checks such as gas safety certificates remain the same. Plan these in good time taking into account any tenant self-isolation period. Encourage your tenants to contact you as soon as an issue arises so that you can plan in repairs.
The legislation has been temporarily changed here. As of 30 March 2020 the following temporary changes have been made:
The full government update can be found here: https://www.gov.uk/guidance/coronavirus-covid-19-landlord-right-to-rent-checks
You may need to consider alternative methods such as WhatsApp video calling.
Open a dialogue with your tenant to see if anything can be done to help them move out.
Should this fail you could start possession proceedings through the courts, this could be a long protracted case so sometimes it is worth waiting for the tenant to leave on their own accord. If you accept payment from your tenant this needs to be accepted as a ‘compensation payment’.
Furthermore the government is encouraging all house moves to be delayed if you have coronavirus:
“Moving home is not appropriate whilst you pose a direct risk of transmitting coronavirus. People who have coronavirus or are self-isolating with their family member should not leave their home to either move home, or undertake property viewings.”
The full government update can be found here: https://www.gov.uk/guidance/government-advice-on-home-moving-during-the-coronavirus-covid-19-outbreak
Therefore you might want to discuss an extension of the tenancy or an agreed future date for departure. You may even want to enter into a new tenancy with your tenant.
For further help with this scenario it is recommended you take legal advice as there are time limits for enforcing a section 8 or 21 notice.
This is an agreement between a landlord and tenant where the tenant is allowed to miss paying rent for a period of time without fear of being served with a Section 8 or 21 notice.
These agreements can be informal but it is highly recommended that a landlord agrees this in writing with conditions (agreed holiday period and agreed re-payment of arrears period), so that action can be taken if the agreement is breached.
This does not mean the tenant has this period rent free, but rather that there is an agreement for the payment or part of the payment to be deferred to a later date.
DAS UK has precedents for landlords at www.dasbusinesslaw.co.uk which can be accessed via the activation code in your policy documentation. Once registered, simply click on the resources section and search for ‘COVID-19’ to find the ‘Covid-19 Landlord and Tenant Payment Plan’ interactive template alongside many other landlord resources and guides.
Visit DAS Businesslaw
How to register
The government has extended ‘mortgage holidays’ to buy to let mortgages to give landlords breathing space during these difficult times. Where a tenant is unable to pay their rent in full you should discuss this with your lender.
During the current Covid-19 period, the government recommends that all landlords do what they can to work with their tenants to help keep them in their homes.
If you are a DAS UK customer, you can get help with this process by talking to DAS Law’s legal advisers, who will explain where the current law stands so that you can decide when or if you should proceed with a claim (check your policy information for contact details). They may require you to complete a questionnaire to assist with this process.
The questionnaires can be downloaded here:
If you have an ongoing possession claim with DAS UK and we have instructed a lawyer to represent you, your lawyer will be in touch to explain how to ensure you comply with current legislation.
Further information on this topic can be found on DAS Businesslaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.
If you are an insurance broker then you can quote and buy our products via DAS Connect, our E-Trade portal, or via your Acturis account.
DAS Businesslaw can help policyholders create a range of documents such as ready-to-sign contracts (with built in e-signature functionality), agreements, policies and letters.
Customers can also access guidance on a wide range of legal matters such as new legislation, employment issues, crowdfunding, tax and financial planning, and data protection. The service also includes numerous COVID-19-specific templates and guides for businesses.
Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.
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