02 September, 2020
It will come as no surprise that over the weekend the Government introduced amendments to the Coronavirus Act, which have subsequently amended the prescribed forms for both Section 21 Notices and Notices of Seeking Possession in England. The amendments only affect notices served after 29 August 2020 and will remain in force until 31 March 2021, unless this period is extended further.
The amendments to section 21 notices are relatively straightforward. The notice period has been extended from 3 to 6 months and the time within which you must issue your accelerated possession claim has been extended from 6 to 10 months, from the date of service. Otherwise the section 21 notice would expire before you had, had chance to issue the claim.
Six month section 8 notices of seeking possession have also been introduced in relation to grounds 1-6, 9, 12,13, 15 and 16. Therefore if you need to serve notice because the tenant is in breach of a term or terms of their tenancy agreement (ground 12) or because the property is in a poor condition (ground 13) a 6 month notice will now have to be served on the tenant. This will be of particular concern to landlords who are in breach of their obligations in relation to gas safety or hoarding situations. In many of these cases an injunction compelling the tenant to allow access has already failed and possession is the only means by which to remedy the landlord's statutory breach or make the property safe again.
A 6 month notice is also required where you are relying on rent grounds 8, 10 and 11 and the tenant is in less than 6 months worth of rent arrears at the date of service. Importantly this notice period is reduced to 4 weeks where rent arrears, at the time of service, are not less than 6 months and where no other grounds are specified. Nothing has been said as to whether, if mandatory ground 8 is used, the court will make a possession order, where the tenant is in at least 8 weeks worth of rent arrears or whether the threshold at the hearing will also be 6 months.
There has been no further changes to ground 7 (death of a tenant) and / or ground 7B (no right to rent) and as such a 3 month notice period is still in force.
In relation to ground 14A (domestic violence), 14ZA (indictable offence in a riot) and ground 17 (false representation) the notice period, where no other grounds are specified, will return to their pre lock period of 2 weeks.
So far so, well not good, but understood at least.
Where things become murkier is where possession in reliance upon anti-social behaviour, ground 14 and / or 7A is relied on.
The article published on the Gov.UK website on Friday 28 August 2020 confirmed that there would be a 4 week notice period in relation to anti-social behaviour. However, the updated prescribed form of notice of seeking possession, also taken from the Gov.UK website, confirms 'where the landlord is seeking possession on ground 14 (with or without other grounds other than 7A), court proceedings cannot begin before the date this notice is served'. In light of this you can return to the pre lock down position of issuing possession immediately, upon service of a ground 14 notice, even where other grounds, apart from ground 7A, are included.
As such, if it was the governments intention to create a 4 week notice period in relation to all anti-social behaviour, it has failed, save of course that the notice period for mandatory ground 7A has returned to a 4 week / 1 month notice period. Perhaps this is what the Gov.UK website article was getting at.
If there is no anti-social behaviour and you want to rely on a number of different grounds you will have to rely on the longer notice period provided. So if you want to issue possession in relation to rent arrears that are below the 6 month threshold (grounds 8, 10 and 11) and domestic violence (ground 14A) the notice period will be 6 months even though ground 14A only requires a 2 week notice period.
I can imagine this might encourage landlords to find and add anti-social behaviour, no matter how minor, to a rent ground notice in order to bypass the 6 month notice requirement and the same can be said in relation to the other grounds now requiring a 6 month notice period. This is unlikely to be favourably received by the courts. However, it may be arguable that some breaches of tenancy, such as failing to allow access for gas safety, also amount to anti-social behaviour (in the sense that they cause nuisance to the landlord) and that, as such, both grounds can be included and the shorter notice period relied on.
So where does that leave us. Housing providers will be extremely relieved that they can take immediate possession action again in relation to serious anti-social behaviour and serve 4 week notices in relation to rent arrears over the 6 month threshold, especially as I imagine many renters are already in this position. Ultimately however unless the stay on all possession claims really does come to an end on 20 September 2020 it will be a little consequence.
For more information contact Sarah Rogers in our Housing & Regeneration department via email or phone on 01772 220161. Alternatively send any question through to Forbes Solicitors via our online Contact Form.