With the moratorium on evictions ended, residential tenancy specialist, Mike Hansom, considers the government’s new rules on eviction by private landlords.
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On 20 September 2020, the government’s twice-extended moratorium on evictions finally came to an end. During its six months of operation:
- any possession claim already issued at court was automatically stayed; and
- case management directions could be given only if both parties agreed.
So what now for residential landlords and tenants?
Over the summer, many predicted that a tsunami of new and reactivated possession claims would overwhelm an already overstretched court service. Now though, that is not going to happen – or not just yet. On 21 August, the government announced they intended:
“to give tenants greater protection from eviction over the winter by requiring landlords to provide tenants with 6 months’ notice in all bar those cases raising other serious issues such as those involving anti-social behaviour and domestic abuse perpetrators, until at least the end of March.”
The new rules are designed to slow the whole process down, not only to provide the stated support to tenants over the winter, but also to provide some short-term protection for the court service.
From 29 August 2020, notice periods have been extended. When serving a section 21 notice to bring an assured shorthold tenancy to an end, a minimum of six months’ notice is now required. The same notice period is required in claims for possession on the ground of arrears of rent, unless the rent arrears are more than six months old, in which case four weeks’ notice is required.
The new notice periods will remain in force until 31 March 2021. They are not retrospective, so if notice was served before 29 August 2020, the shorter notice periods apply.
Landlords who began eviction proceedings before 3 August 2020 now have an additional hurdle to jump. If they fail to file at court and serve on the tenant a “reactivation notice“, the claim will not be relisted by the court. Further, if the claim is based on arrears of rent, the landlord must provide with the reactivation notice an updated rent account for the previous two years. And beware – if no reactivation notice has been filed and served by 4.00 pm on 29 January 2021, the claim will be automatically stayed.
On 15 September 2020, forms of Reactivation Notice for both parties were issued, although their use is not mandatory. The landlord’s notice lists circumstances they may wish to rely upon to gain “priority consideration“, namely:
- “significant anti-social behaviour”;
- “extreme rent arrears accrued“, defined as “at least 12 months’ rent or (in the case of a private landlord) 9 months’ rent if that is at least 25% of the private landlord’s income“;
- “squatters, illegal occupiers or persons unknown“;
- “domestic violence where possession of the property is important“;
- “fraud or deception“;
- “unlawful subletting“;
- “abandonment, non-occupation or death of the defendant“;
- “the property was allocated by an authority as temporary accommodation and is specifically needed for re-allocation as such“.
In a move seen as extending towards private landlords the pre-action protocol which applies to social landlords, the explanatory notes say that landlords should tell the court what they know of the impact of the pandemic on the tenant or their dependents. However, landlords can also rely upon any adverse financial consequences they too have suffered as a result of the pandemic.
There is no clarity as to the nature or extent of the information which must be provided, nor to the weight the court will give to it. It is possible that in some cases this information may impact upon the amount of time the court gives to the tenant to vacate the property.
It is also not entirely clear what sanction, if any, there may be for landlords who fail to provide this information.
Even where a reactivation notice has been properly filed and served, do not bank on getting a hearing any time soon. Between 23 August 2020 and 28 March 2021, the standard eight week period between issuing the claim and the hearing is not applicable (although you will receive a minimum of twenty one days’ notice of the hearing). Indeed, a hearing date will not be fixed at all at the time the claim is issued.