Eviction bans and notice period extensions

On 21 August 2020, the UK Government extended the ban on evictions and notice periods by a further four weeks, as a result of the COVID-19 pandemic. This means that ‘possession action’, which is the steps taken by the courts or required to be taken by parties in residential possession claims and evictions, will now be paused.

The extension was announced just hours before it was brought into effect, and on the last working day before the stay was due to be lifted. The new date for this extension to end is on 20 September 2020.

The announcement earlier in August also featured a new six-month notice period for the majority of residential possession claims. This has now also been brought into effect by an amendment to regulations in The Coronavirus Act 2020.

The new extension has left some solicitors and landlords alike wondering what the connection is between the extension and the new notice periods and why the government left making an announcement until the last minute.

What is the background to these changes?

When lockdown began it was obvious that emergency measures would be needed to minimise homelessness. It was also clear that part of this would include regulations to prevent people living in rented accommodation from being evicted during the lockdown.

The first announcement on this ban was made on 18 March 2020. However, the only concrete measure it introduced was to increase the amount of notice landlords would have to give tenants, before issuing possession proceedings for some residential tenancies, to three months. This came into effect on 26 March 2020.

That announcement was met with criticism. Many felt the measure would not apply to the very large number of renters who would already have been given notice before the change came into effect. Disapproval was also voiced around instances where court proceedings were already underway against a renter.

However, it was supplemented at the last minute by a much more comprehensive measure implemented not by the Government, but by the judiciary system. A change to its own Civil Procedure Rules a day later imposed a blanket stay on all residential possession proceedings.

This meant that the court would not hear any possession cases or require compliance with any steps in existing possession cases, until after the stay was lifted. The legislation was initially brought in for a period of 90 days, to expire on 25 June 2020.

By the start of June, it was clear that the public health rationale for the stay still applied. It also became apparent that the courts were not in a position to hear the large numbers of cases now waiting to be heard, even with this three-month notice period.

It was therefore announced that the stay would continue until 23 August 2020.

Why was an extension brought in?

The idea was that in the intervening period, the Government could work on legislation that would ease the burden on the courts, once they did start hearing possession cases again. This would help ensure there would not be a huge number of cases needing to be dealt with all at once, when things returned to normal.

Unfortunately, a backlog of issued cases has indeed built up. There is now a wait for the county courts to start progressing them, because the stay did not prevent notices from being served or claims from being issued.

By 21 August 2020, the last working day before the postponed expiration of the stay, little action had been taken. Some positive steps were made, though, with the introduction of new requirements for stayed cases.

One of the parties has to file a ‘re-activation notice’, together with details about what is known of the impact of COVID-19 on the defendant’s household, before the case can be heard.

That aside, the courts were still unprepared to meet the onslaught of cases. Apparently, the problem only sank in on 21 August, leading to a last minute four-week extension, to allow time for something more to be done.

What further extensions were introduced?

Eventually, the decision was made to extend notice period requirements to six months. This is in order to stagger the cases that the courts will now need to deal with, allowing them to concentrate on the backlog before dealing with any new cases.

It is fair to say that the regulations have been introduced rapidly, following their announcement the week before. Unfortunately, that haste does show that the new rules are far from clear.

It is not obvious exactly what notice period applies to what kinds of tenancies, and on what grounds. The headline changes appear to be:

• The changes brought in by the regulations all apply until 31 March 2021.
• All Assured Shorthold Tenancy “Section 21” notices will need to give six months’ notice.

Ordinarily, after serving a Section 21 notice, a landlord has to issue proceedings within six months. This means that a six-month Section 21 notice could never actually be relied on.

The regulations, therefore, also contain a provision that extends the amount of time the notice can be relied on, to 10 months. It is not clear that this is actually a change which can be made by these regulations, as opposed to primary legislation made by Parliament.

How the courts approach this remains to be seen.

What are the differences in notice periods?

With most other Assured Shorthold Tenancy, and most Assured Tenancy, grounds for possession will require a six-month notice period. The exceptions to this are some specific rent arrears claims, but this is only if based on rent arrears of at least six months at the date of serving the notice. These claims will then only require a four-week notice period.

Other differences in claims include:

• Ground 7 and 7B claims, based on the death of the tenant or immigration status, will then require only a three-month notice period.
• Ground 7A and 14A claims, based on criminal conduct, will subsequently require only a four or two-week notice period.
• Ground 14 claims, based on anti-social behaviour and related conduct, will apparently not require any notice period at all.

In some cases, the short notice period grounds can be combined with other grounds, but there is little consistency in when this is and is not allowed. The regulations are also not retrospective, meaning any three-month notices served between 26 March 2020 and 28 August 2020 will still be valid.

What next for renters?

The stay is now set to end on 20 September 2020.

Despite the new notice periods, applying from 29 August 2020, the requirements around reactivation notices, and a proposal for the rent arrears pre-action protocol to be extended, there is bound to be a rush of possession cases after this date.

As the courts are stretched in this way, inevitably there will be a tendency for justice to be rougher than it otherwise would be.

As we have commented previously on possession claims, it is crucial to ensure that the most vulnerable members of society receive the necessary help and support they need, when facing the threat of eviction.

If you’re worried about your housing situation during the coronavirus pandemic, don’t hesitate to get in touch with our Social Housing team. Call us on 0808 271 9413 or request a call back online.