New form of Notice Seeking Possession - but not all is what it seems

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11 May, 2021

A new prescribed form of Notice Seeking Possession (under section 8 of the Housing Act 1988) has been introduced. Landlords in England are required to use this latest form for any Notice Seeking Possession served on or after 04 May 2021. It has no effect on landlords in Wales.

Below is a link to the prescribed form:

The Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021 (legislation.gov.uk)

Why the change?

The new form of notice takes account of additional legal protections which have been created by the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.

These regulations also came into force on 04 May 2021 and establish a scheme which will give an individual in problem debt the right to legal protections from their creditors by enabling them to obtain either a "breathing space moratorium" or a "mental health crisis moratorium" in relation to a qualifying debt (which could include rent arrears). This will then restrict a creditor's ability to take enforcement action for a period of 60 days in the case of a breathing space moratorium or, in the case of a mental health crisis moratorium, the duration of the mental health crisis treatment plus 30 days.

For landlords, it will pause any enforcement action including the service of a Notice Seeking Possession in relation to a moratorium debt. It also means that they are unable to serve such a notice on any of the rent arrears grounds (grounds 8, 10 and 11 of Schedule 2 to the Housing Act 1988) until the expiry of the moratorium period.

However, by updating the guidance notes contained within the Notice, a number of anomalies appear to have been created, including the omission of references to COVID-19 protections for residential tenants.

What's different?

The changes to the prescribed form of notice have come about through the Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021 (SI 2021/518).

The regulations seek to amend the earlier Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (SI 2015/620) by substituting a new form of Notice Seeking Possession for the old form.

This latest form seeks to return the prescribed wording to something akin to its pre COVID-19 version, albeit with additional information to reflect the impact that the new Debt Respite Scheme has on a landlord's ability to serve notice and commence proceedings.

In doing so:

  • Part of the opening wording that read "and modified by section 81, and paragraph 6 of Schedule 29 to the Coronavirus Act 2020" has been removed.
  • The guidance notes at the head of the document now include three additional bullet points.
  • The "notes on the grounds for possession" have also been amended and added to.

However, it is in relation to the guidance notes that explain "the earliest date on which court proceedings can be brought" where the biggest stumbling block arises.

The "notes on the earliest date on which court proceedings can be brought" have been amended so that, by and large, they now refer to the categories of notice periods that existed before the outbreak of the Coronavirus. That means that the various COVID-19 related protections (e.g. the six-month notice period that currently exists for rent possession claims where less than six months' rent is unpaid) are not referred to - even though these enhanced notice periods currently remain in place until 31 May.

The first bullet point within this part of the new notice provides:

"Where the landlord is seeking possession on grounds 8, 10 or 11 (with or without other grounds) paragraphs 2 to 6 below set out the earliest date on which proceedings can be brought, unless a breathing space has started."

This is then followed by a list of notice periods and the corresponding grounds to which they relate (that mirror those in place before the outbreak of the Coronavirus), including the second bullet point which states:

"Where the landlord is seeking possession of grounds 1, 2, 5 to 7, 9 or 16 (without ground 7A or 14), court proceedings cannot begin earlier than 2 months from the date this notice is served on you and not before the date on which the tenancy (had it not been assured) could have been brought to an end by a notice to quit served at the same time as this notice. This applies even if one of grounds 3, 4, 7B, 8, 10 to 13, 14ZA, 14A or 17 is also specified."

The last two bullet points are new and confirm that court proceedings cannot begin while enforcement action has been paused in line with the rules of the debt respite scheme and that the traditional 12-month deadline by which a claim for possession has to be issued may be affected by any breathing space that starts after the notice has been served.

The fly in the ointment

Unfortunately, the continuing effect of the Coronavirus Act 2020 is likely to cause confusion as to how the above changes are to be read by any recipient of the notice.

Upon coming into force in September 2020, the Coronavirus Act made changes to the various notice periods in respect of residential tenancies. However, the legislation was not accompanied by regulations which sought to introduce a new prescribed form of Notice Seeking Possession. Instead, the Coronavirus Act sought to amend the prescribed wording of the existing notice contained within the 2015 Regulations by changing the way it should be read.

Paragraph 12 of Schedule 29 to the Coronavirus Act instructed people to read the opening two paragraphs of the "notes on the earliest date on which court proceedings can be brought" in a different way. To begin with, all notice periods were to be read as being "3 months". Then, following the passing of the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, differing notice periods were introduced depending upon which grounds were being relied on.

Most relevant amongst these, for the purposes of non-payment of rent, was a four-week notice period for grounds 8, 10 and 11, providing the arrears were more than 6 months. If the arrears were less than 6 months, a 6-month notice period would apply.

The Coronavirus Act 2020 (and the subsequent amendment regulations) remain in force. They will therefore continue to have an effect on any notice that is served during the "relevant period", which is currently due to last until 31 May 2021. These means that for any notice served before this date, the first two bullet points of the guidance notes in the new form of notice cannot be read in the way intended by the new regulations.

This has the potential to cause confusion in the minds of tenants (and possibly) landlords alike. If landlords adopt the new form of notice, tenants may fail to appreciate the enhanced notice periods that continue to apply until the end of the month. Conversely, if the tenant reads into the guidance notes the enhanced notice periods, they do so at the expense of part of the Debt Respite Scheme guidance, which seeks to qualify the earliest the date upon which proceedings may be brought. Not to mention that the guidance notes will then refer to contrasting notice periods (i.e. both pre and post Coronavirus Act) for the various grounds for possession, without any indication as to which applies.

Given that a key purpose of the Notice Seeking Possession is to inform the tenant when possession proceedings may be brought, this is far from ideal.

What should you do?

First and foremost, the Coronavirus-related notice periods continue to apply. They should be observed for all notices that are served until 01 June 2021.

In relation to the prescribed form, given these anomalies, there is every possibility that further clarification will be provided by the Ministry for Housing, Communities and Local Government. Until then, it may be advisable to hold off from serving Notice Seeking Possession.

If there is an urgent need to serve notice, the MHCLG have updated their own template Notice Seeking Possession, which is accessible via the Gov.uk website. It should be noted that this is a composite of the old and new form of notice. Whilst the guidance notes appear to be clearer in this version, strictly speaking, it is not in the correct form. If a landlord was to rely upon this, the validity of the notice may be challenged as it is not in the form prescribed by the new regulations.

If landlords decide to use the form of notice set out in the new regulations, they should remain mindful of the enhanced notice periods, even though the guidance notes suggest differently. It may be prudent to explain within any covering letter to the tenant the reason why the notice period given differs from that set out in the guidance notes.

Currently, any scope for confusion will only last until 31 May. It is hoped that these issues will become academic from that date onwards. That said, the "relevant period" may be extended further, so landlords should remain vigilant towards this.

For more information contact Sam Gorrell in our Housing & Regeneration department via email or phone on 01772 220391. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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