29/08/2020

Here come the new rules, (not quite) the same as the old rules – Notice periods

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.

Comment

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.)

 

 

 

 

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.

48 Comments

  1. Chris

    Thanks for this update.

    Is licensees/guardians’ (not RentAct or 1985 ones (which are covered above)) notice unchanged at 4 weeks (Protection from Eviction Act 1977) (same as throughout)?

    Reply
    • Giles Peaker

      Yes, licences were never caught by the Coronavirus Act changes.

      Reply
  2. Claire Pearce-Crawford

    Thanks for the update Giles. I am wondering the same as Chris. Licences with arrears of more that 6 months haven’t really changed ? 4 weeks? Ntq. But what happens post this ?

    Reply
  3. Tessa Shepperson

    I too am losing the will to live over all this. Every time I write something the government goes and changes it!

    Whats your view Giles about proceedings forfeit a tenancy for non payment of rent? Which, so far as I am aware, you can still do for Rent Act tenances, and common law/unregulted tenancies. Presumably as you don’t need a notice for that it is unaffected (other than by the general stays)?

    Reply
    • Giles Peaker

      Yes, I presume so, as not specifically addressed.

      Reply
  4. Joe Warren

    And Ground 7A for the HA ‘88 Is 1 month? I’d also read it (and the new prescribed form 3) as saying that using Ground 14 or 7A along with other grounds allowed the shorter notice period for those ASB grounds. Is that correct?

    Reply
    • Giles Peaker

      Ground 7A – reverts to pre CA position (will add that) – so 4 weeks (weekly) or one month (monthly). But I don’t think using other grounds with 14 or 7A allows other grounds to be used with shorter notice.

      First, I think it has to be the longer notice period (7A is longer than 14), and second, if any of the six month grounds are used, then the six month notice clause is engaged.

      Reply
  5. Joe Warren

    Thanks. It’s confusing as the regs don’t spell out the position with 14 and 7A alongside other grounds but the notes in the updated form 3 (section 8 notice) do seem to say the ground 14 period (or no notice period) can be used with other grounds save for when with ground 7A – then Ground 7A notice period then applies

    Reply
    • Giles Peaker

      The regs suspend the previous Coronavirus Act Schedule 29 position on 14 and 7A.

      I’ve now seen the Form 3. I rather suspect it is actually wrong, but will have to have another look.

      Reply
      • Giles Peaker

        OK, I’ve re-parsed that bit, and it is right. Grounds 7A and 14 can be used with other grounds with the shorter (or no) notice period. I’ve added an update to the post to specify this.

        Reply
  6. Anon

    Very helpful article.
    Am I correct in thinking that if Ground 14 is used with other grounds on assured tenancy cases then the notice period becomes immediate?

    Reply
  7. Jim Shepherd

    Stunning work on a tight schedule Giles thank you Jim

    Reply
  8. Nicola

    You mention that there are going to be a number of s21 Notices served by post on Thursday and Friday that will now be invalid, i.e. because the deemed date of service will be 1 September. This makes sense on one hand but on another, it doesn’t seem right as we had no way of knowing when serving those notices that the legislation change was going to come into force on 29 August. Do you think it is possible that notices “served” on Thursday and Friday could be deemed valid in subsequent proceedings, or would your advice be to re-serve notices now giving 6 month notice period? Many thanks for getting this advice out so quickly. i imagine I will get phone calls about this today!

    Reply
    • Giles Peaker

      I doubt that it would be open to the courts to ‘forgive’ having the incorrect notice period when served. I agree that dumping legislation on us with about 8 hours before it comes into effect is not a great way to go about things!

      Reply
  9. g Jones

    what is the position for eviction notices that were served and the tenat refused to leave prior to lockdown and a bailiff order was requested prior to lockdown but was caught up when Courts closed. It already took a year prior at least and has nothing to do with Covid.

    Reply
    • Giles Peaker

      It should carry on after 20 September 2020. Where there is a pre-existing possession order, there is no need for a re-activation notice, but the court will probably need informing that a warrant is still required.

      Reply
      • John

        We are in the same position as G.Jones, with the exception that we applied for a Warrant (early March) the Court finally cashed our cheque (end April) and we have obviously heard nothing since. Why should the Court need reminding to deal with this matter, it should be lined up ready to go on 20th September. In an effort to find our what is happening I spent time every day last week phoning the Warrant centre for our area, 45 unanswered calls later (the phone rang until it timed out) I was no further forward. My guess is that the Court service have done NOTHING to prepare for re-opening and total mayhem and anarchy will ensue followed by total disintegration of the service. Human nature being what it is, many that landlords will not stand idly by for the best part of two years with no income from their property while the Courts, civil servants and Gov’t ministers sort out this disaster of their own making.

        Reply
        • Giles Peaker

          There is to be a triage and prioritisation procedure in the courts for possession matters, and I would expect the existing possession matters to be reviewed in the run up to 20 September, or at least those post possession order. However, it remains that the courts are massively under funded and under staffed, so I’d take the view that a reminder of the existence and position on your matter certainly couldn’t hurt. In particular it is worth informing the court that warrant date is still required, as in some cases, the situation might have changed.

  10. Alice

    Hi Giles, and many thanks for this very useful analysis. I am still trying to get my head around the combining of grounds for secure tenancies. My understanding is that for secure tenancies, previously no notice was required for ground 2 (ASB). This was omitted by the Coronavirus Act 2020 which required temp 3 month notice. The new SI suspends that notice requirement for ground 2 ‘whether with or without other grounds’. Am i right in thinking that ground 2 requires no notice whether with or without or without other grounds.

    Reply
    • Giles Peaker

      Yes, I think so – s.83(3) Housing Act 1985 applies as before, as Coronavirus Act amend is suspended.

      Reply
  11. Kate

    Hi Giles, thanks for a very useful article. What is the position with s.8 notices served back in Jan/Feb 2020 but where proceedings had not been issued. Can the old s.8 notice still be relied on or does a new s.8 notice need to be issued? Thanks

    Reply
    • Giles Peaker

      I think the old notices can be relied upon, subject to the 12 month limit.

      Reply
  12. Julie H

    Hello, thank you for this helpful information. With regards to Ground 10, where as we used to be able to rely on Ground 10 when “some” rent was owing, is it now that we can only use the 28 day notice period when a minimum “six month’s rent” is owing (in total) – i.e. monthly rent £1,000.00 ergo £6k must be owing before relying on/including Ground 10. What about at the time of the court hearing? sorry if i’ve not picked up on this within the mind-blowing amendments! Thank you

    Reply
    • Giles Peaker

      To use the 4 week notice period for ground 10 (and grounds 8 and 11), there must be at least 6 months rent arrears at the date of service of the notice. Otherwise, it is six months notice.

      There is no requirement for that level of rent arrears at the time of the hearing, though. You would probably need to evidence the 6 months arrears at date of service of the notice.

      Reply
  13. R

    Dear GP, thank you for the swift analysis on this issue. Re “at least 6 months arrears”, in your view is this calculated with reference to the gross rent due? or net rent?

    Many thanks,

    R

    Reply
      • Ben

        Thank you for this. I think it is how much protection is now being afforded to the tenant.

        Under Housing Act 1988 what do you think would constitute nuisance or annoyance in Ground 14 or false representation under Ground 17 (tenancy granted on false representation)?
        And does the two weeks still apply with the recent changes?

        Is there any grounds that would apply if the tenant is neglecting a property?

        Reply
        • Giles Peaker

          Read the post. And read ground 14 and 17 and the case law on here.

  14. Ian

    Hi Giles, thanks for keeping us up to date. Can I check the position of NTQ section 5 of the Protection from Eviction Act 1977 for basic contractual tenancies that fall outside of the Housing Act 1988, Housing Act 1985 and the Rent Act 1977? Can you confirm the notice period please as information about these tenancies is hard to find. Regards

    Reply
    • Giles Peaker

      It is in the post – licences and contractual tenancies were never caught by the Coronavirus Act changes to notice periods.

      Reply
  15. A. Makanjuola

    Hi Giles, thanks for this update. I’m sorry to take us back the to the pre-28 August position but it was unclear to me (and remains unclear) whether NTQs served under the second part of Ground 1, Schedule 2 of HA 1985 would be the usual 4 weeks or 3 months. These are in cases of non-occupation, abandonment, etc. where the wording of Ground 1 is ” … or an obligation of the tenancy has been broken or not performed”. Paragraph 3 of the old Schedule 29 appeared to include theses cases.

    Reply
    • Giles Peaker

      6 months for Ground 1 unless 6 months of rent arrears, when it is 4 weeks.

      If the tenant has lost secure tenancy status – not occupying as primary residence – could serve an NTQ instead? Notice periods for contractual tenancies are unaffected by the Coronavirus Act etc.

      Reply
    • ANON

      Hi Giles. If a valid s.21 notice was served in December 2019 but proceedings were not commenced before the moratorium, will a landlord still be able to issue possession proceedings under the original notice in September 2020?

      Reply
      • Giles Peaker

        No, the notice will have run out in June 2020.

        Reply
        • ANON

          Even though many courts were closed over lockdown so it was impossible for the claim for possession to be issued? This doesn’t seem fair or equitable to landlords.

        • Giles Peaker

          The stay didn’t prevent possession claims being issued. They just wouldn’t proceed further. This was expressly set out in CPR 55.29 and PD 51Z. The courts weren’t closed, just not doing hearings.

  16. Kathryn Windebank

    HI Giles. We use non-secure tenancies for Part VII Housing Act 1996 tenants. Does the notice period remain at 28 days for rent arrears on these type of tenancies?

    Reply
    • Giles Peaker

      I believe so, yes. Contractual tenancies.

      Reply
  17. Norman

    So for a company let, no formal notice to quit of any length is required? Presumably a 4 week notice is required before possession proceedings could be started?

    Reply
    • Giles Peaker

      Company let – depends. If during the term, then common law notice period required for an NTQ (4 weeks, a month etc, depending on period of the tenancy). If the term of the tenancy has expired, then no NTQ is needed, because no tenancy.

      Reply
      • Norman

        Great! But if the tenant doesn’t leave at the end of the tenancy, do you still have to give 4 weeks notice if you want to start possession proceedings? Also, has the 20th September ban on possession proceedings been extended?

        Reply
        • Giles Peaker

          The rules on contractual tenancies are the same as they have always been. If, as it appears, you want advice on getting possession on a company let, which presumably has sub-tenants, or at least occupiers, I can only suggest you pay for it, as there are a lot of potential complexities depending on the facts that can make things troublesome.

          No, the stay wasn’t extended, as a cursory read of this site or many others would tell you.

  18. Ben

    Are you aware of any precedent whereby a Section 21 notice is issued, however, further evidence comes to light where other grounds for repossession could be applied and a subsequently a second Section 21, with a shorter notice period is also issued?

    Reply
    • Giles Peaker

      There is no ‘shorter’ s.21 notice period. It is six months.

      If, say, rent arrears were over six months, a four week section 8 notice could be served. But that would require proff of the grounds and the six months arrears at the tim of notice when it came to be issued at court.

      Reply
  19. Blue

    Hi Giles, can I ask, when issuing a section 8 notice, should you put the most important ie, ground 14 with no notice period, first before other grounds or in number order? Does it matter? Thank you

    Reply
    • Giles Peaker

      I don’t think it matters. Numerical order is clearest

      Reply
  20. Blue

    Many Thanks Giles for your feedback.
    Kind Regards, Blue

    Reply

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