John Murray, Head of the Social Housing Group at Ward Hadaway, explains why extending the evictions ban will only cause a bigger headache for housing providers and courts further down the line…
The latest in a string of government U-turns happened on 21 August 2020, when, under pressure from the opposition and charities, Housing Secretary Robert Jenrick announced that the stay on possession proceedings introduced in March would be extended for an additional four weeks.
A week later, on 28 August 2020, the government published new regulations detailing the current notice periods with which landlords seeking possession must comply (see below).
The regulations were published on 28 August 2020 and came into force a day later. This means that the new notice periods will apply to notices served on (or after) 29 August 2020 but do not apply to notices served prior to this date.
While clarity regarding the new notice periods is welcome, the legal framework is changing on a weekly – if not daily – basis, and as such the notice periods outlined below may well see further amendments. It is also possible that the government may announce a further extension to the current stay on possession proceedings, which was initially due to expire on 23 August before being pushed back to 20 September 2020.
It is welcome, too, that landlords can start possession proceedings for anti-social behaviour: the stay on possession proceedings has seen an exponential rise in injunction proceedings, for existing possession claims which had been stalled, and for situations where normally possession might have been used – all of which has increased costs for landlords.
“The courts are preparing for an onslaught of restored and new possession claims – there is a large training programme to bring in a new judges to deal with the increased volume”
But rent arrears have risen over the last six months without an existential remedy. While some of those arrears have arisen due to income loss as a consequence of the pandemic, the reality is that many in arrears will have been furloughed, or are entitled to housing benefit, and many persistent arrears cases existed prior to COVID-19.
The government’s ‘one size fits all’ approach – designed to prevent homelessness when we should all have been staying at home – will result in large financial losses for housing providers as arrears spiral.
The courts are preparing for an onslaught of restored and new possession claims when the ban is lifted; there is currently a large training programme to bring in a new cohort of judges to deal with the increased volume.
Further, new rules have been brought in to serve a new notice before restoration of an existing case and the commencement of a new one.
But it is clearly essential that landlords can start enforcement proceedings again, so that claims can be considered on their own merit.
That is literally the raison d’etre of judicial discretion: to take circumstances – including the effects of COVID on the tenant – into account, and to preclude wilful and persistent non-payers taking advantage of a system that was not designed to help them.
Summary of the new rules
Housing Act 1985 (Secure Tenancies)
- Ground 1: if the tenant is in rent arrears for at least 6 months and no other grounds are relied upon by the landlord (other than grounds 2ZA, 2A or 5), 4 weeks’ notice must be provided
- Ground 2: if the landlord proposes to rely on ground 2 (which typically regards nuisance, annoyance and using the dwelling for illegal purposes) there is no notice period
- Grounds 2ZA, 2A and 5: respectively, these grounds relate to indictable offences which take place at a riot, domestic violence and false statements made in relation to a tenancy
- In these circumstances, the landlord is required to provide 4 weeks’ notice
- Other Grounds: if the landlord proposes to rely on any other ground (and in the case of flexible tenancies), the landlord must provide 6 months’ notice
Housing Act 1988 (Assured and Assured Shorthold Tenancies)
- Section 21: the landlord must provide a minimum of 6 months’ notice. We note that the period in which possession proceedings may be brought has been extended to 10 months from the date of service
- Section 8: subject to the exceptions (outlined below), the landlord must provide 6 months’ notice. The exceptions are outlined as follows: »Grounds 8, 10 or 11: if the rent arrears are less than 6 months, the landlord must provide 6 months’ notice
- Grounds 8, 10 or 11: if the rent arrears are not less than 6 months (and no other ground is relied upon), the landlord must provide 4 weeks’ notice
- Ground 7: in the event that the previous tenant has died and the current tenant has inherited the tenancy, the landlord must provide 3 months’ notice
- Ground 7A: if legal action has been taken against the tenant for anti-social behaviour, the landlord must provide 4 weeks’ notice for a weekly tenancy or if the tenancy is monthly, one month notice is required
- Ground 7B: if the tenant does not have the right to rent, the landlord must provide 3 months’ notice
- Ground 14: the landlord is not required to provide a notice period
- Grounds 14A, 14ZA and 17: the landlord is required to provide 2 weeks’ notice, provided that no other grounds are relied upon
Introductory and demoted tenancies
- If the landlord proposes to seek possession by reason of anti-social behaviour, the landlord is required to provide 4 weeks’ notice
- For any other reason, 6 months’ notice is required
John Murray is Head of the Social Housing Group at Ward Hadaway, of which he is also an Executive Partner for the Leeds office.
John has specialised in Housing Law since 1987, and has for many years acted for both housing associations and local authorities in relation to housing management litigation on a nationwide basis.
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