In that delightfully wilful way that we housing lawyers have come to know and love*, the Govt chose Friday afternoon 28 August to drop The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 on an unprepared and frankly – end of a busy week and so on – wholly unready public. And they came into force today, Saturday 29 August 2020 in England.
I will confess that I started this post on Friday, but by about half way through, I had lost the will to live. So, apologies – ish – for the delay.
These regulations introduce the new, varied and various notice periods trailed by the Secretary of State here a whole week ago (it seems longer). I’ll set out below what I think they do, and what the position is from 29 August 2020. However, this involves reading across the new Regulations, the Coronavirus Act 2020 Schedule 29, Rent Act 1977, Housing Act 1985 and Housing Act 1988 to actually parse what it does, so my apologies for any errors.
I think it is probably best to try to work through the effect tenure by tenure and ground by ground.
First off though, regulation 2 does some important work in suspending the effect of certain parts of Schedule 29 Coronavirus Act (CA) in England.
- The three month notice period for ground 2, schedule 2 Housing Act 1988 (discretionary ASB ground)
- The three month notice period for s.83ZA Housing Act 1985 (absolute ASB ground)
- The three month notice period for Grounds 7A and 14 Schedule 2 Housing Act 1988 (via s.8(3A) and (4) HA 1988)
- Modified notices for ground 2 Schedule 2 Housing Act 1985, via Part 1 of the Schedule to the Secure Tenancies (Notices) Regulations 1987
- Modified notices for ground 7A and 14 HA 1988 via Form 3 in the Schedule to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015
These are all suspended, meaning that the relevant bits of Schedule 29 CA are not of effect. Remember this as it comes into play later on.
So, on to tenure and grounds. This is going to be painful, so bear with me, and possibly bite on a piece wood or something. All of these changes apply until 31 March 2021.
Rent Act 1977 and Protected Tenancies
Case 2, where rent arrears are more than 6 months – notice period of 4 weeks, whether or not any other cases apply.
Case 10A (no right to rent) – notice period of 3 months
All other cases – notice period of 6 months.
Housing Act 1985 Secure tenancies
Ground 1, where rent arrears are at least 6 months, and no other ground is specified (save 2ZA, 2A or 5) – notice period of 4 weeks
Ground 2 (nuisance/annoyance/illegal purposes/indictable offence in locality) – no notice period.
Grounds 2ZA (indictable offence at riot), 2A (Domestic violence and non-perpetrator partner has left) and ground 5 (false statement in obtaining tenancy) – notice period of 4 weeks, so long as no other ground (except ground 1) is specified.
Every other ground, and for flexible tenancies – 6 months notice.
Housing Act 1988 – Assured and Assured shorthold tenancies.
Section 21 – 6 months notice in all cases. The period in which possession proceedings may be brought on a s.21 notice has been extended from 6 months from date of service to 10 months from date of service. (I note in passing that it is, at the least, arguable, that this extension cannot be done by regulation, even regs made under the Coronavirus Act 2020. But we’ll have to see how that plays out).
Section 8 grounds.
Grounds 1-6 – 6 months notice
Ground 9 – 6 months notice
Grounds 12 or 13 – 6 months notice
Grounds 15 or 16 – 6 months notice
Ground 8, 10 or 11 where rent arrears are less than 6 months at the date service of notice – 6 months notice.
Ground 7 (after death of tenant) and/or 7B (notice of no right to rent), where no other notice is specified – 3 months notice.
Ground 7A (offence in locality, closure order etc.) – reverts to pre CA position, so 4 weeks notice for weekly tenancy or one month for monthly tenancy.
Grounds 8, 10 & 11, where no other ground is specified in the notice, and rent arrears at the time of service of the notice are not less than 6 months – 4 weeks notice.
Ground 14 (nuisance/annoyance/illegal purpose/indictable offence in locality) as far as I can tell – no notice period
Grounds 14A (domestic violence and non perpetrator partner has left), 14ZA (indictable offence in riot) or 17 (tenancy granted on false representation) are specified in the notice, but no other grounds – two weeks notice
Introductory and Demoted tenancies
Notice of proceedings on ASB reason (whether or not other reasons) – notice of 4 weeks
All other reasons – notice of 6 months.
It didn’t have to be this way…
First, I have to do a disclaimer – this is what I think the regulations mean. But I’m not confident enough to proclaim that this is the case. Do not rely on my view…
Second, I would be astonished if there weren’t challenges to the regulations. If any were successful, that could completely change the playing field.
But assuming that I am right, and that these regulations continue, the detail is key here.
The rent arrears position varies across tenures (I have no idea why). So, for Rent Act tenancies, a shorter notice period only applies if rent arrears are ‘more than six months’, for Housing Act 1985 ‘at least 6 months’, and for Housing Act 1988 more than ‘less than 6 months rent’, which I take to be equivalent to ‘at least 6 months rent’.
The position also varies as to whether shorter notice on a ground is valid when the ground is combined with other grounds.
For Rent Act tenancies, other grounds can be included, so long as the ‘more than 6 months arrears’ ground is made out at the date of service.
For Housing Act 1985 tenancies, only certain grounds can be combined (and probably not any other ground with ground 2, if relying on the no notice period).
For Housing Act 1988 grounds, again, only certain grounds can be combined, and where they all meet the same reduced notice criteria. If a six month notice period ground is used, it excludes a shorter notice period, even if a shorter notice ground is included. (Update – The exceptions to this (because of course there had to be exceptions) are ground 7A and ground 14, both of which can be combined with other grounds but retain the shorter or no notice period.)
For Introductory and Demoted tenancies, any other reason can be combined with ASB reasons for the reduced notice period.
So, lots of headaches for landlord and tenant advisors alike, and lots of fresh opportunities to get things wrong.
There will also be lots of choices to make for landlords where a three month notice has already been served, but there may be a shorter notice period for the ground under the regulations now.
And, of course, there will be a number of three month notices sent by post to tenants on Thursday 27 August and Friday 28 August which will now be invalid, as they would count as served on Tuesday 1 September. Any 3 month notice served by hand on Friday 28 August – at least before 4.30 pm – will be valid.
I should also mention that licences and contractual tenancies were never caught by the Coronavirus Act changes, so notice periods remain as they always were. They were caught by the stay on possession claims, and will continue to be until 20 September 2020.
(*we don’t love it, it drives us to distraction and despair, not least because we know on a Friday evening that a lot of people will be demanding that we tell them what it means for them first thing on Monday.)