Residential tenancies during Covid-19

The outbreak of coronavirus and the development of the disease, COVID-19, in Britain continues to see many new rules and restrictive measures to homes, businesses and societies.  The position is continuously changing and so we are adding updates to this article accordingly. 

Coronavirus Act 2020 (‘the Act’) is currently the backbone of the legislative response and has effect from the 26^th March 2020.  It is a monumental piece of legislation which has been the focus of much media attention and scrutiny.  

The Act affects all aspects of ‘normal life’ and is well-worth a read and scroll through but in this article we will be looking at what impact Schedule 29 of the Act currently has on residential landlords and tenants.

Primary changes

The purpose of the changes is to allow some protection for tenants throughout the outbreak.  To enable this, notice periods for landlords to end tenancies will be extended throughout the relevant period.

The changes will apply for the period 26^th March 2020 to 30^th September 2020 (‘the relevant period’), but may well be extended further. The Act permits a further 3 month extension to the relevant period without the requirement of passing another bill.

Residential tenancies affected by the Act are those within the following categories: regulated; secure; flexible; fully assured; assured shorthold; introductory; and demoted tenancies.

A landlord can still serve a Notice seeking possession of a residential property but there is a revised notice now available. The minimum notice period is extended to 3 months. [see May 2021 update below]

Upon expiry of the notice period, if the tenant remains in occupation, the normal rules apply in that the landlord still requires a possession order and, if the tenant refuses to leave, a warrant of possession for a bailiff to evict.

That being said, seeking a possession order is likely to take much longer than normal. By an amendment to Part 51 of the Civil Procedure Rules, from 27^th March 2020 all relevant proceedings for possession and enforcement have been suspended for 90 days, with a view to extend that suspension period if necessary.  This means that any possessions proceedings already with the court are going to form a long queue for listing once normality is resumed.

Updated June 2020

The Housing Secretary has announced an extension of the suspension to 23^rd August 2020 to ensure no one is evicted this summer. There is nothing preventing possession claims being filed but court proceedings will form a queue for listing after this date. We await an update on new court rules being drafted to ensure vulnerable tenants will be protected when the suspension of eviction ends.    

Updated September 2020

A further announcement has been made for the stay of residential possessions to be extended to 20^th September 2020. Once the stay has ended, a ‘Reactivation Notice’ is to be sent to the court in accordance with Practice Direction 55C of the CPR. Where a reactivation notice is required and not sent by 4pm on 29^th January 2021 the court will automatically stay the claim. 

The minimum notice period, which was two months and extended to three months, has been extended yet again to a six month notice period for relevant possession notices being served between 29^th August 2020 and 31^st March 2021. [see May 2021 update below]

Updated 27^th October 2020

The courts have introduced new steps under “The Overall Arrangements” to help deal with the backlog of residential possession cases as a result of the pandemic. It includes:

• Covid-19 marking of court files. The courts require further information from claimants to help prioritise their caseloads and determine whether the claim should be dealt with sooner or later as a result of the pandemic. There needs to be detail of any effect the pandemic has had on claimants, defendants and their dependants. For claimants, this could be evidence that they are becoming insolvent as a result of the pandemic lockdowns (must be directly related to the pandemic and not just a lack of rent from tenants). For defendants, this can be evidenced by contacting the tenants and asking how they are affected by the pandemic and their position on rent arrears. Failure to provide information will result in the dismissal of a claim. In the event that attempts have been made to contact the tenant, but no response has been received then it should suffice to confirm to the court that the effect is unknown but the court may also consider the rent position.

• The preparation of a bundle of documents for the judge to consider at a review hearing and a copy to be sent to the defendant. This must be done 14 days before a review hearing.

• A telephone review hearing with the claimant or their legal representative so the judge can decide whether to dismiss the claim, order further directions, arrange another hearing, or give the file a Covid-19 marking to expedite or delay a decision.

Updated May 2021

The minimum notice period of 6 months is to remain for relevant possession notices being served up to and including 31^st May 2021.

Tenant’s obligations

Although eviction is more difficult for landlords, tenants should not be under any illusion that the Act allows for non-payment of rent during the relevant period. Tenants must continue to pay rent where they can.

Tenants should avoid accruing rent arrears which may lead to a County Court Judgment.  The Act does not freeze the payment of rent or prevent landlords from pursuing rent arrears through other means than eviction.  That being said, with communication, landlords may be able to assist and some may agree to temporarily reduce rent or allow arrears to spread once the tenant is in a better financial position. Landlords may also qualify for a 3 month mortgage break.

The key message here is effective communication between landlord and tenant from an early stage, understanding the issues, and reaching a solution. Agreements should be set out in writing which we can help negotiate and prepare so that both parties are protected.

Other recent legislative changes

Landlords should be mindful of other recent changes which may have been overshadowed by the Coronavirus Act and by the Coronavirus itself.

From 1^st April 2020 under The Energy Efficiency (Private Rented Property)(England and Wales) (Amendment) Regulations 2018, it has become an offence to let a residential property that falls below the required Energy Performance rating.

Up until the 31^st March 2020, the requirement only applied to new tenancies, however, now all residential properties let under residential assured, assured shorthold, regulated, and domestic agricultural tenancies must have an EPC with an energy performance rating of level “E” or better regardless of when that commenced.  

If you rent a property and think you are falling foul of this, speak to us. There are exemptions and we can advise you upon various funding options available.

HMCTS priorities

All of the above is against a backdrop of social distancing and reduced Court availability.  So as not to endanger public health, Her Majesty’s Courts and Tribunal Service is exercising social distancing, reducing staff numbers and consolidating the work of courts and tribunals into fewer buildings. Where possible, cases are being heard behind closed doors with the majority being dealt with by telephone and video-link.

Although court work is continuing and a network of priority courts remain open during the pandemic, as well as the above 90 day suspension, residential tenancy possessions are classified as non-urgent to allow limited civil court resources to be used for urgent matters such as Freezing Orders, displacement under the Mental Health Act, and Homelessness Applications.

The latter not being assisted by possession proceedings during the pandemic. Obviously the current ‘lockdown’ prevents temporary accommodation at go-to places such as hotels, B&Bs, and even relatives’ homes have become unavailable.

How can BHP Law help?

At BHP Law our Dispute Resolution team is experienced in Landlord and Tenant matters. Simply contact the team on 01325 466794 to discuss with us or arrange an appointment.  Given the current guidance appointments can be carried out by phone or video conference.  Although staff at our offices are very limited, our specialists are all able to work from home and will be happy to help you through these turbulent times.