Residential Tenancies: Where are we now?

Notices, Evictions, Rent Arrears and Restrictions with Residential Tenancies

Landlords of residential properties may be forgiven for being fairly confused by this point as to what notice they need to give to tenants and whether they can or cannot recover their property. This brief guide to residential tenancies seeks to simplify the current position in England and Wales.

In March the ban on evictions introduced in response to the coronavirus pandemic was extended to 31 May 2021. The aim in relation to residential property was to prevent renters from ‘losing their home needlessly. This ban was also coupled with an extension to the notice periods that need to be given to renters, with most increasing to 6 months.

However, with the start of the sunny weather comes the 1 June 2021 deadline, which ends the ban on evictions in England and reduces most of the notice periods under s8 and s21 Housing Act 1988 to 4 months, with some exceptions remaining for more extreme cases.

Notice Periods

Section 8 notices (England)

The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 (SI 2021/564) (English Regulations No 3) take effect from the 1 June 2021 to 30 September 2021. They reduce the required notice period for section 8 notices, from six to four months, unless an exception applies in which case the notice period may be shorter.

This means that, for notices served on or after 1 June 2021 until 30 September 2021, the notice period to be given in a section 8 notice in relation to an assured or assured shorthold tenancy in England, will in many cases be four months.

However, the exceptions mean that the following, shorter, notice periods apply in the following situations:

• Four weeks, where at least four months’ rent is unpaid at the time the notice is served. This will apply where there are at least four months’ rent arrears and the landlord is able to rely upon on one or more of grounds 8 (substantial arrears of rent), 10 (some rent due) or 11 (persistent delay in paying rent).
• Four months, where the landlord relies on rent arrears (grounds 8, 10 or 11) and less than four months’ rent is unpaid at the time the notice is served, and the notice is served in the period from 1 June 2021 to 31 July 2021 (inclusive).
• Two months, where the landlord relies on rent arrears (grounds 8, 10 or 11) and less than four months’ rent is unpaid at the time the notice is served, and the notice is served in the period from 1 August 2021 to 30 September 2021 (inclusive).
• Two months, where possession is sought following the death of the former tenant (ground 7).
• Two weeks, where the grounds for eviction relate to the tenant’s right to rent (ground 7B).
• The notice period that applied before Schedule 29 to the Coronavirus Act 2020 came into force, where the grounds for eviction relate to anti-social behaviour, domestic violence or acquiring the tenancy as a result of a fraud. Proceedings may therefore be commenced immediately after service of the notice where the landlord relies on ground 14 (nuisance, annoyance, illegal or immoral user). The notice period will be two weeks where the landlord relies on grounds 14A (domestic violence where the landlord is a social or charitable housing landlord), 14ZA (riot conviction) or 17 (landlord induced to grant tenancy by false statement). The notice period will be four weeks or one month if the landlord relies on ground 7A (certain criminal convictions, and breaches of injunctions or closure orders under the Anti-social Behaviour, Crime and Policing Act 2014).

For notices served on or after 1 June 2021, landlords must use a new prescribed form of section 8 notice in England (Form 3), prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2021 (SI 2021/562) (Forms Regulations No 2).

Section 8 notices (Wales)

The Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020 (SI 2020/778) (Welsh Regulations) amended paragraph 6(c) and (d) of Schedule 29 to the Coronavirus Act 2020. Accordingly, with effect from 24 July 2020 the notice period a landlord had to give a tenant of a property in Wales has been six months. The period to which the extended notice periods applies has been extended to 30 June 2021. However, the exceptions. A landlord may be able to commence possession proceedings immediately after service of notice if it relies on ground 14, after only two weeks’ notice if it relies on ground 14A, or four weeks or one month if it relies on ground 7A.

The prescribed form of section 8 notice (Form 3) set out in the Schedule to the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (SI 1997/194), has been modified to reflect the changes to the notice requirements (regulation 15, Welsh Regulations No.2). However, an amended version of the prescribed form of section 8 notice for use in relation to properties in Wales has not yet been published by the MHCLG or the Welsh Government.

The MHCLG has published guidance notes on Understanding the possession action process for private and social landlords and tenants which contain helpful tables showing the modified notice periods that will apply in Wales from 29 September 2020 onwards under section 8 of the HA 1988, depending on which grounds of eviction the landlord relies on.

Section 21 notices (England)

With effect from 1 June 2021 to 30 September 2021, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 (SI 2021/564) (English Regulations No 3) reduce the minimum notice period to be given in a section 21 notice in England, from six to four months. They also reduce the period in which possession proceedings must be commenced under section 21(4D) of the Housing Act 1988 from ten to eight months from the date on which the notice was given.

For notices served on or after 1 June 2021, landlords must use a new prescribed form of section 21 notice in England, prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2021 (SI 2021/562) (Forms Regulations No 2).

Section 21 notices (Wales)

In Wales, the minimum notice to be given in a section 21 notice that is served in the period from 24 July 2020 to 30 June 2021, is six months. It is anticipated that further provisions may be made later in June to either extend the six month notice period or step down the notice requirements as is happening in England.

What Can Landlords Still Do?

The restrictions do not appear to apply to possession claims against:

• Trespassers.
• Those who have remained in occupation following the termination of a licence or common law tenancy.

A new Practice Direction 55C (PD 55C) under the Civil Procedure Rules (CPR) came into force from 20 September 2020, when the stay under CPR 55.29 ended. PD 55C was originally due to end on 28 March 2021, but has been amended to now end on 30 July 2021. Claims can still be made but PD 55C must be observed until at least the end of July.

There is nothing currently preventing Landlords from seeking a possession order. However, the Courts remain backed up and the extended process currently in place does mean that in many cases it is still taking months to secure the order.

The restrictions do not prevent landlords from pursuing other claims, such as debt claims in respect of the non-payment of rent. These are currently being used to good effect in cases where the tenants simply won’t, rather than can’t pay. They may also prompt a negotiated surrender, saving the need for possession proceedings.

Restrictions on evictions

Even where Landlords have been able to obtain a Possession Order, there has been further frustration to the recovery of property in the form of the ban on evictions. Measures were introduced which mean that, except in certain specified circumstances, orders for possession may not be enforced in England or Wales during the period of any national lockdown, or possibly outside of a national lockdown where a property is in an area that is subject to more stringent local restrictions, or if anyone living in the property has COVID-19 symptoms or is self-isolating.

Restrictions on residential evictions in England

The Public Health (Coronavirus) (Protection from Eviction) (England) (No 2) (Amendment) Regulations 2021 (SI 2021/362) extend the restrictions on residential evictions in England until 31 May 2021.

On 12 May 2021, conformation was given that the restrictions on carrying out residential evictions in England would not be extended, and would end on 31 May 2021. However, bailiffs have been asked not to carry out residential evictions on or after 1 June 2021 in England if anyone living in the property has COVID-19 symptoms or is self-isolating. This may yet provide a convenient excuse for many facing eviction.

Restrictions on residential evictions in Wales

The Public Health (Protection from Eviction) (No. 2) (Wales) (Coronavirus) Regulations 2021 (SI 2021/325 (W 84)) prevent attendance at a dwelling house in Wales for the purposes of executing a writ or warrant of possession or restitution, or delivering a notice of eviction, except in certain specified circumstances, until 30 June 2021.

Exemptions apply where the court is satisfied that the notice, writ or warrant relates to an order for possession made:

• Against trespassers to which CPR 55.6 applies (persons unknown).
• Wholly or partly on Ground 7A (anti-social behaviour), Ground 14 (nuisance) or Ground 14A (domestic abuse) in Schedule 2 to the HA 1988.
• Wholly or partly on Ground 7 (death of tenant) in Schedule 2 to the HA 1988, where the person attending has taken reasonable steps to satisfy themselves that the property is unoccupied.

Therefore, the eviction ban remains in place in Wales at present. It is unclear at the time of writing whether this will also end on 30 June 2021.

Impact of the End of the Evictions Ban

While notice periods remain extended and the Courts remain backed up there is going to be some delay and staggering of tenants finding themselves potentially homeless. However, that is not going to alter the fact that local authorities are already struggling to address current levels of homelessness and worse is yet to come.

Homelessness charity Shelter has released research showing that 1.8 million private renting adults in England (22%) are worried they will lose or be asked to leave their current home at short notice. It follows previous analysis by the charity in November 2020 which showed that 445,000 private renters were in arrears or had been threatened with eviction.

Similar analysis by the Joseph Rowntree Foundation (JRF) estimated that 400,000 renting households, 5% of all renters, have either been served an eviction notice or have been told they will be evicted. JFR found that a further one million renting households are worried about being evicted in the next three months, half of which are families with children. JRF’s research found that renters from Black, Asian and minority ethnic (BAME) backgrounds (18%) are almost twice as likely to be worried about being evicted compared with white renters (10%).

While many landlords who have been under increasing pressure from lenders may be breathing a sigh of relief that they can finally be able to make some progress towards recovering their properties, there remains a long road ahead. The process continues to be painfully slow and costly. It is also unclear what impact high levels of evictions might have on the rental market. In many cases, the best option remains to come to an arrangement to allow tenants to repay arrears over a period (where possible) rather than turn them out and create a void in an uncertain market.

If tenants find themselves in arrears or under threat of eviction, they should engage in discussion with their Landlord to ensure they have explored the options open to them. They should also take advice promptly. This can be provided for free by organisations such as Shelter or through the Citizens Advice Bureau.   

Please contact me if you would like to discuss anything relating to residential tenancies in further detail.