Tenants have extra protection while lockdown lasts

Cllr Nazir Ahmed FRSA – barrister, writer and analyst – explains the extra protection due to tenants during the Covid-19 pandemic.

The long established legal requirement that landlords must give a minimum of two months’ Notice period when serving a Section 21 Notice to end a tenancy was changed when the coronavirus pandemic struck the UK.

The Coronavirus Act 2020 was passed on an emergency basis. Royal Assent was received on 25th March 2020 and it came into force the following day. One purpose of the Act was to give extra protection to tenants during the pandemic.

Section 29 of the Coronavirus Act amended certain sections of the Housing Acts 1985, 1988 and 1996, as well as the Rent Act 1977. These amendments extended the notice period for any Notice served by a landlord seeking possession from two months to three months. That means a landlord cannot commence possession proceedings until a three-month period has passed. Notices served before 26th March 2020 are still valid.

However, from 27th March to 23rd August 2020 (initially it was for 3 months, then on 5th June the Government extended it for two more months to 23rd August 2020 – and it may be extended further) all possession proceedings going through the courts are suspended.

The Act will apply to all Notices to Quit and Notices Seeking Possession. Any Notice served from 26th March 2020 in connection with a protected and statutory tenancy, a secure tenancy, an assured tenancy (including assured shorthold), a flexible tenancy, a demoted tenancy or introductory tenancy must have a notice period of three months. This applies to all grounds for possession including anti-social behaviour.

There are new, updated prescribed forms for Section 8 and Section 21.This does not only relate to those Notices which have arisen due to coronavirus. Although the Act will not affect any ongoing possession proceedings or Notices issued before it took effect, all proceedings will be adjourned on the grounds that, from 27th March, housing possession cases going through the courts are being suspended.

On 26th March 2020 it was announced that the Master of Rolls and Lord Chancellor had agreed to suspend all ongoing housing possession actions for 90 days, with no exclusions. The next day, Practice Direction 51Z was issued. This includes a statement that all proceedings for housing possession brought under CPR Part 55 and all proceedings seeking to enforce an Order for Possession by a warrant or writ of possession are stayed for a period of 90 days, from 27th March 2020. In Arkin v Marshall & Anr [2020] EWCA Civ 620, the Court of Appeal held that the Practice Direction was lawful and not ultra vires. As mentioned above, the Government has extended the stay for further 60 days.

It is important for tenants to know that a landlord cannot evict a tenant without a Court Order. However, landlords cannot now ask their tenants to leave without one. Tenants should also know that being served with a Notice does not mean that they have to leave once the three months has expired. Rather, it means that landlords cannot apply to the court for possession until the three months’ period has passed.

It is worth mentioning that the Act provides for a pause in possession actions, but it does not stop the process indefinitely and tenants are still required to pay rent. The Act allows for some limited protection, but there is an expectation consistent with the legislation that there should be communications early on if tenants are experiencing difficulties in paying rents. The landlords and tenants are advised to have open and honest conversations about rent payments which are still due. These conversations ideally could include the financial hardships being faced by tenants, reasonable rent payments and repayment schedules.

We have been facing unprecedented challenges that nobody has ever contemplated.  We should all be supportive to each other to overcome those challenges.

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