23/03/2020

Emergency legislation on possession claims

I’ve seen the draft amendments to the Coronavirus Bill on housing possession. A word of caution, this was a draft from 22 March, not the actual amends due to be put forward today 23 March. I was waiting for those to be made public to check, but that has not happened as of 6 pm. There may have been some changes, but my understanding is it was going ahead as per the draft. (Update – 7 pm. The Govt’s amendment is here. Substantially identical to the draft)

In advance of the emergency legislation on housing possession, the government promised:

The government has announced a radical package of measures to protect renters and landlords affected by coronavirus. As a result, no renter in either social or private accommodation will be forced out of their home during this difficult time.

Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a 3 month period. As a result of these measures, no renters in private or social accommodation needs to be concerned about the threat of eviction.

And… the amends don’t do all of what was promised. By some way.

In short, what the amendment does is say that, from the commencement date (not before) and until 30 September 2020, the Protection from Eviction Act 1977, the Housing Act 1985 and the Housing Act 1988 should be read in such a way as to require that any notice to quit or notice seeking possession for specific tenancy types requires three months notice. This also includes the relevant prescribed forms.

This notice period may be extended up to six months by the Minister (but see issues below).

What in practice the amends mean is that – from the commencement date – any notice served in respect of a Rent Act/protected tenancy, a secure tenancy, an assured tenancy (including assured shorthold tenancies), a flexible tenancy, a demoted tenancy or introductory tenancy – must have a three month notice period.

This includes ASB grounds, section 21, etc. Any notice at all, for those tenancies.

And that is it.

Immediate issues and problems:

This does not include Rent Agriculture Act 1976 tenancies; nor Assured Agricultural Tenancies, nor Family Intervention Tenancies. Granted, there aren’t many of any of them, but still.

More significantly, this does not extend to licences or contractual tenancies, so does not cover property guardians, people in temporary homeless accommodation (whether under licence or ‘non-secure tenancies’), or much employment-related accommodation,

It appears that notices issued before the commencement date will remain valid as a basis for possession proceedings. So a swathe of coronavius related possession claims will not be caught, where notices will have already been served. As it will not be in effect until Friday at the earliest, and apparently not even made retrospective to the date of Government’s announcement, that is a further week of valid notices under the old time scales.

There is no address to the issue of coronavirus related rent arrears, none at all. As this proposed legislation stands, any tenant accruing rent arrears because of the impact of coronavirus (not being able to work, losing their job, self isolating etc) could face immediate possession proceedings three months after the service of a notice seeking possession. One has to expect a tidal wave of possession claims down the line.

And finally – and this is a corker – the legislation quite rightly provides a power for the Minister to extend the three month notice term, for any period up to 6 months. This is wholly reasonable – we don’t know how things are going to play out. But there is precisely zero provision for what happens to an already served ‘three month notice’ if the period is then extended by the minister to, for example, six months during the period of that notice. The upshot would be that all those ‘3 month’ notices would be valid, making an extension to 6 months largely pointless.

This is disappointing. It doesn’t do what the press release trailed. It doesn’t really protect renters (in most cases it will give them an whole extra month’s notice), It doesn’t do anything at all to ensure that tenants do not lose their home due to the effects of coronavirus. At best, it just delays it by a month or two. And it won’t stop people being forced out of their homes where there is an existing notice (although it appears that the national courts guidance to county courts may be to adjourn all possession claims until June, but that is a separate matter).

 

 

 

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

17 Comments

  1. Daniel

    Had a notice today of an apparently unilateral decision by Staines County Court to adjourn all possession matters to first open date after 5th May. Hadn’t seen the draft legislation at the time and so assumed it was in light of that but this… Doesn’t affect currently live proceedings? I mean I am glad I don’t have to go to court tomorrow, but it would be nice to know what is actually happening.

    Reply
    • David

      This is interesting. Just walked over to the court and nothing posted up. We have a social landlord with 7 possession claims today, all apparently going ahead?

      Reply
  2. tom tyson

    Is there any link to the draft amendments? There need to be a whole lot more. Parliament’s ‘footprint’ is all over all aspects of residential possession, in terms of substantive and adjectival law. I have already suggested further amendment to my MP, but without the text of what is being proposed, I am not in a position to suggest or draft further amendments (to a large amount of primary legislation).
    Thanks, as ever. for the update

    Reply
  3. Ben Reeve-Lewis

    Given we are in the first stages of an international crisis I expect confusion but if possession actions are now going to be going ahead and the courts are closed and hearing cases remotely https://cornerstonebarristers.com/cmsAdmin/uploads/homelessness-briefing-final-23-03-20.pdf How are people going to be actually defending applications? Especially with rogue landlords falsifying documents and making spurious, unsubstantiated claims?

    I don’t feel any further forward

    Reply
  4. Ben Reeve-Lewis

    Sorry, wrong link posted above

    Reply
  5. YG

    Very helpful, thanks. My two cents is that the detail of this legislation is just #1 of three interrelated questions, the other two being #2 whether and how courts will be listing possession hearings (answer currently seems to be “rarely”), and #3 whether bailiff appointments will be happening (answer currently seems to be “no”). Hard to know how to advise clients until we know the answers to those too.

    [Seeing as I’m commenting for the first time, can I briefly thank you for all the effort you put in to this fantastic blog?]

    Reply
    • Giles Peaker

      Thank you. I agree the other two are important factors, but nothing to do with MHCLG or the legislation.

      Reply
    • Matt A

      Regarding whether bailiff appointments will be happening, I received a letter from Watford County Court today, dated 23 March, which said “Under present circumstances re. the coronavirus the court will not be allocating any dates for eviction for the immediate future.” Nothing more was given, although the £121 court fee was returned, so that’s something…

      Reply
  6. Daniel N

    Depressing state of affairs if this goes forward without some sort of retroactive provision.

    On the issue of defending possession proceedings on rent arrears grounds, I wonder if there’s any argument that arrears accrued due to the impact of coronavirus is such a singular event that it would meet the “exceptional circumstances” threshold to allow adjournment of a possession hearing on ground 8 to allow the tenant time to get arrears below the threshold? Or is a global pandemic a “sad feature of contemporary life” as per, North British Housing Association v Matthews [2004] EWCA Civ 1736?

    Not that this would help in (probably far more numerous) s.21 cases.

    Reply
  7. DAVINDER SINGH

    I would be grateful if someone could actually tell me the date of commencement of the ” Eviction ban ” the date this legislation actually comes into force , I have asked , looked at so many commentators including calling the relevant department and every one has a different date , thank you for the article but can we have the date of commencement please.

    Reply
    • Giles Peaker

      That is up to parliament. Probably Friday, depending and on the passage of the Bill. That is how these things work.

      And come on, it is not up to me!

      Reply
  8. dermotmckibbin

    Are the local county courts still open? When I worked as a duty adviser the court was crammed packed on possession hearing days. There is a real danger of virus transmission

    Reply
  9. Deno

    Wanted to clarify that this is the position regarding NTQs served to end a Tenancy on death of a tenant.

    Reply
    • Giles Peaker

      I think probably not. It is not a protected, assured or secure tenancy at that point, but wholly contractual (assuming no succession).

      Reply

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