More Changes to Notice Periods for Residential Landlords and Tenants
September 3, 2020
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In that delightful way that is becoming all too familiar, the Government chose the late afternoon of Friday 28 August 2020 (notably the Friday of a Bank Holiday Weekend) to drop The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 on an entirely unprepared public. They came into force on Saturday 29 August 2020 in England, giving neither the public nor their legal advisors any opportunity whatsoever to get the grips with the new, complex and rather confusing range of notice provisions before they came into force.
These regulations introduce new and varied notice periods. To interpret them you need to read across Schedule 29 of the Coronavirus Act 2020, Rent Act 1977, Housing Act 1985 and Housing Act 1988. Given the Regulations are already in force and the speed with which they need to be understood, I have set out below what I believe their interpretation to be, but this may be subject to further clarification and/or subsequent legislation. Due to the complex and rather awkward way in which the Government have chosen to approach these matters, it does not make for easy reading, for which I can only apologise.
The best way I have found to consider the Regulations is to review each type of tenancy in turn.
To begin, Regulation 2 suspends the effect of certain parts of Schedule 29 Coronavirus Act 2020 (CA) in England, namely:
- The three month notice period for ground 2, schedule 2 Housing Act 1988 (discretionary ASB ground)
- The three month notice period for s.83ZA Housing Act 1985 (absolute ASB ground)
- The three month notice period for Grounds 7A and 14 Schedule 2 Housing Act 1988 (via s.8(3A) and (4) HA 1988)
- Modified notices for ground 2 Schedule 2 Housing Act 1985, via Part 1 of the Schedule to the Secure Tenancies (Notices) Regulations 1987
- Modified notices for ground 7A and 14 HA 1988 via Form 3 in the Schedule to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015
These are all suspended until 31 March 2021, with the provisions of the Regulations currently in force until at least that date.
Rent Act 1977 and Protected Tenancies
In respect of Case 2 where rent arrears are more than 6 months, landlords will be required to give a notice period of 4 weeks, whether or not any other cases apply.
In respect of Case 10A (no right to rent) landlords must give notice of 3 months
In all other cases the notice period required is 6 months.
Housing Act 1985 Secure tenancies
In respect of Ground 1, where rent arrears are at least 6 months, and no other ground is specified (save 2ZA, 2A or 5), notice of 4 weeks is required.
In respect of Ground 2 (nuisance/annoyance/illegal purposes/indictable offence in locality) no notice period is required.
In respect of Grounds 2A (Domestic violence and non-perpetrator partner has left), 2ZA (indictable offence at riot), and ground 5 (false statement in obtaining tenancy) a notice period of 4 weeks should be given so long as no other ground (except Ground 1) is specified.
In respect of every other ground, and for flexible tenancies there is a 6 month notice period.
Housing Act 1988 – Assured and Assured shorthold tenancies.
In respect of Section 21 from 29 August 2020 landlords must give 6 months’ notice in all cases. The period in which possession proceedings may be brought on the basis of a s.21 notice has been extended from 6 months from date of service to 10 months from date of service.
In respect of Section 8 Notices, this is now varied again depending upon which ground is being relied upon. These are summarised in the table below:
|Ground for possession||Mandatory or discretionary||Minimum notice period required in section 8 of the HA 1988 notice as amended by the Regulations|
|1. Landlord occupied the property as its only principal residence before the tenancy started or landlord requires the property back to live in as its only principal residence||Mandatory||Six months|
|2. – Mortgagee requires possession of the property because of mortgage arrears on the property.||Mandatory||Six months|
|3. Tenancy is for a fixed term not exceeding eight months and was occupied as a holiday let during the 12 months before the tenancy started.||Mandatory||Six months|
|4. Tenancy is for a fixed term not exceeding 12 months and was let by an educational establishment during the 12 months before the tenancy started.||Mandatory||Six months|
|5. Property is held for the purpose of being available for occupation by a minister of religion as a dwelling house from which to perform his duties and is required for occupation by a minister of religion.||Mandatory||Six months|
|6. Landlord intends to demolish or reconstruct the whole or a substantial part of the property or carry out substantial works which cannot be carried out with the tenant there.||Mandatory||Six months|
|7. Previous tenant has died and the tenancy has passed to a new tenant under a will, but the new tenant is not entitled to the tenancy under the law of succession. This applies to periodic tenancies and also, following an amendment made by the LA 2011, certain types of fixed term tenancies in England.||Mandatory||Three months (provided no other grounds requiring longer notice periods included)|
|7A. Any of the following conditions are met: The tenant, or a person residing in or visiting the dwelling house: Has been convicted of a serious offence committed (i) wholly or partly in or in the locality of the dwelling house or (ii) against someone with a right to reside in or in the locality of the dwelling house or (iii) elsewhere against the landlord. Has breached a provision of an injunction under s1 of the ASBCPA and the breach occurred in (a) the dwelling house or its locality or (b) elsewhere and the provision breached was intended to prevent conduct capable of causing nuisance or annoyance to someone with a right to reside in the dwelling house or accommodation in its locality or to the landlord. Has been convicted of an offence under s30 of the ASBCPA. The dwelling house is or has been subject to a closure order under s80 of the ASBCPA and access to the property has been prohibited for a continuous period of more than 48 hours.The tenant or a person residing in or visiting the dwelling-house has been convicted of an offence under s80(4) or s82(8) of the Environmental Protection Act 1990 (EPA 1990) and the nuisance in question was noise constituting a statutory nuisance for the purposes of Part 3 of the EPA 1990.||Mandatory||Three months|
|7B. Both of the following conditions are met: The Secretary of State has given a notice in writing to the landlord or, in the case of joint landlords, one or more of them identifying the tenant or in the case of joint tenants, one or more of them, or one or more other adult occupiers of the dwelling-house as a person or persons disqualified from occupying the dwelling-house under the tenancy as a result of their immigration status. The person or persons named in the notice are both of the following: the tenant or, in the case of joint tenants, one or more of them, or are one or more other adult occupiers of the dwelling house; and disqualified as a result of their immigration status from occupying the dwelling house under the tenancy.||Mandatory||Three months (provided no other grounds requiring longer notice periods included)|
|8. Rent is unpaid at the time of the service of the section 8 notice and at the date of the hearing: If rent is paid weekly or fortnightly, at least eight weeks’ rent is unpaid.If rent is payable monthly, at least two months’ rent is unpaid.If rent is payable quarterly, at least one quarter’s rent is more than three months in arrears.If rent is payable yearly, at least three months’ rent is more than three months in arrears.||Mandatory||Six months (if less than 6 months’ of rent arrears) Four weeks (if more than 6 months’ rent arrears and only relying on grounds 8,10 or 11)|
|9. Suitable alternative accommodation is or will be available for the tenant when the possession order takes effect.||Discretionary||Six months|
|10. Rent was unpaid by the tenant when the section 8 notice was served and has not been paid by the time possession proceedings are begun.||Discretionary||Six months (if less than 6 months’ of rent arrears) Four weeks (if more than 6 months’ rent arrears and only relying on grounds 8,10 or 11)|
|11. Tenant has persistently delayed paying rent, regardless of whether the rent was in arrears on the date that possession proceedings began.||Discretionary||Six months (if less than 6 months’ of rent arrears) Four weeks (if more than 6 months’ rent arrears and only relying on grounds 8,10 or 11)|
|12. Any obligation of the tenancy (other than non-payment of rent) has been broken or not performed.||Discretionary||Six months|
|13. The tenant, or anyone living with the tenant, has allowed the property or parts of it (including common parts) to deteriorate.||Discretionary||Six months|
|14. The tenant or anyone living with or visiting the tenant: Is guilty of conduct that has or is likely to have caused a nuisance or annoyance to neighbours.Is guilty of conduct that has or is likely to have caused a nuisance or annoyance to the landlord or the landlord’s managing agent.Has been convicted of using or allowing the property to be used for immoral or illegal purposes.Has been convicted of an arrestable offence committed in the area of the property.||Discretionary||It appears it is now possible to issue proceedings immediately upon service of the notice (subject still to the stay in place on possession proceedings). This is already becoming a hotly debated point and likely to be subject to further clarification.|
|14ZA. The tenant or any adult living at the property has been convicted of an indictable offence which took place at a riot in the United Kingdom. (This ground only applies to a property in England).||Discretionary||Two weeks (provided no other grounds requiring longer notice periods included)|
|14A. The property was occupied by a couple who were, or were living together as, a married couple or civil partners and one or both of them is the tenant, the landlord is a social or charitable housing landlord,one partner has left the property because of violence or threatened violence by the other partner towardsthat partner, ora member of that partner’s family who was living with that partner immediately before that partner left, andthe court is satisfied that the partner who has left is unlikely to return.||Discretionary||Two weeks (provided no other grounds requiring longer notice periods included)|
|15. The condition of any furniture at the property has deteriorated due to ill treatment by the tenant or other person residing at the property.||Discretionary||Six months|
|16. The property was let to the tenant as part of its employment with the landlord and the tenant is no longer employed by the landlord.||Discretionary||Six months|
|17. The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by either the tenant or a person acting for the tenant.||Discretionary||Two weeks (provided no other grounds requiring longer notice periods included)|
Introductory and Demoted tenancies
Four weeks’ notice of proceedings on the basis of Antisocial Behaviour, whether or not other reasons are given, otherwise six months’ notice required.
Licences and Contractual Tenancies
For completeness I will add that licences and contractual tenancies were never caught by the Coronavirus Act changes, so notice periods remain as they always were. However, they were caught by the stay on possession claims, and will continue to be until at least 20 September 2020.
Position in Wales
It is notable that since 24 July 2020 under the Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendments) (Wales) Regulations 2020 have been in force in Wales. These extended the majority of notice periods in Wales to six months with the notable exception of the grounds 7A and 14 in relation to notices given under s8 Housing Act 1988 remaining at three months’ notice.
Assuming that these Regulations continue, the key is going to be in considering the detail of the particular tenancy and the circumstances under which notice is being given.
The rent arrears position varies across tenures, though I cannot fathom why, but generally seems to imply that where there are more than 6 months’ of rent arrears the notice period can be reduced. For Rent Act tenancies, a shorter notice period only applies if rent arrears are ‘more than six months’, for Housing Act 1985 ‘at least 6 months’, and for Housing Act 1988 more than ‘less than 6 months’ rent’, which I have interpreted as a rather clumsy way of stating ‘at least 6 months’ rent’.
The position also varies as to whether shorter notice on a ground is still valid when that ground is combined with other grounds.
For Rent Act tenancies, other grounds can be included, so long as the ‘more than 6 months arrears’ ground is made out at the date of service. For Housing Act 1985 tenancies, only certain grounds can be combined and probably not any other ground with ground 2, if relying on the no notice period. For Housing Act 1988 grounds, again, only certain grounds can be combined, and where they all meet the same reduced notice criteria. If a six month notice period ground is used, it excludes a shorter notice period, even if a shorter notice ground is included. The exceptions to this are ground 7A and ground 14, both of which appear to be able to be combined with other grounds but retain the shorter or no notice period. For Introductory and Demoted tenancies, any other reason can be combined with ASB reasons for the reduced notice period.
The overall conclusion appears to be that the new Regulations are likely to cause headaches for landlords, tenants and their advisors. There are also going to be lots of opportunities for parties to get things wrong.
There are choices for landlords to make where a three month notice has already been served, but there may be a shorter notice period for the ground under the regulations now.
And, given the short notice on the Regulations, there will, of course, be a number of three month notices sent by post to tenants on Thursday 27 August and Friday 28 August which will now be invalid, as they would count as served on Tuesday 1 September. Any 3 month notice served by hand on Friday 28 August before 4.30 pm will still be valid.
While some concession has been given to those landlords facing the more extreme cases, little thought appears to be extended to the impact the ongoing extension of notice periods and stays on possession claims is having on landlords. Many landlords are already dealing with tenants in significant arrears. Most of those tenants will have paid little more than 1 month’s deposit and it is unlikely most landlords will recover much more than that. In the meantime, the government has offered no support to landlords who have their own financial obligations to meet, with many being forced to default on mortgages and other loan repayments.
The speed with which these Regulations have been drafted and issued has given no time for proper consideration or implementation. There are already some challenges being raised regarding the legal standing of some of the changes the Regulations seek to make. That, combined with the speed in which they were produced and brought into force, makes them ripe for challenge. This may well change the playing field again.
Therefore, I must give the disclaimer that this is only what I believe the Regulations implications to be at the time of writing on 1 September 2020. Further clarification will no doubt come, and matters are changing rapidly so this update should be viewed for information only and not relied upon otherwise.
The Government has also highlighted an intention to introduce further legislation, once the COVID-19 pandemic is over, to ‘deliver a better deal for renters and a fairer, more effective rental market’. So, we can expect to see yet more changes introduced in the near future.
During these uncertain times, landlords may require additional assistance in drafting and serving the correct notice on their tenants. There also remain some steps that can be taken to assist landlords in mitigating their losses while they wait for notice periods to end or stays to be lifted on proceedings. If you would like to discuss your particular situation please contact Claire-Elaine.Arthus@gunnercooke.com