Extension to Notice Period for Residential Tenancies

Please note that this article refers to the law applicable to Assured and Assured Shorthold Tenancies.

At the end of August, a statutory instrument was passed which makes a fairly radical change to the notice requirements relating to residential tenancies.

There is concern that tenants may argue that the legislation could have made those notices that have already been served, invalid. However, as the non-statutory guidance to the changes indicates that this is not the intention, it is hoped that Judges will not support such arguments.

Recent History

In March 2020, legislation was passed extending most notice periods, applicable to residential tenancies, to three months. This encompassed the non-fault based notice (section 21 notice) and the fault based notice (section 8 notice). Previously, section 21 notices were only required to give two months’ notice and section 8 notices could require as little as two weeks’ notice, when relying on two months’ rent arrears as a ground for possession.

In addition to this, the Courts have stayed all residential possession proceedings until 20th September 2020. This was following a last-minute extension to the stay which had originally been set to come to an end on 23rd August 2020. The reason given for this extension was to allow the Courts more time to prepare to deal with the backlog.

It is anticipated that the Courts will start dealing with some of the possession cases towards the end of this month.

There has been a political concern that once the Courts were back open for business there would be a flood of possession claims due to the impact of the coronavirus crisis on people’s ability to pay their rent.

We have heard anecdotally that Judges will be looking for reasons not to make possession orders due to the significant impact this may have on a great number of families.

The Recent Amendment

On 28th August, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment)(England) Regulations 2020 were laid before Parliament and immediately came into force.

The stated effect of this snappily titled piece of legislation is that until 31st March 2021:

  • In most cases, Landlords will have to wait for six months after serving a notice under section 8 of the Housing Act 1988 before they can issue proceedings for possession. The notice will have to set out the date after which possession proceedings can be started (there are some exclusions to this – see below).
  • Notices served under section 21 of the Housing Act 1988 have to give six months’ notice of the date required for possession.

There are some exceptions to this new legislation:

  • If there are more than six months’ arrears outstanding then the landlord will only be required to give four weeks’ notice before they can issue proceedings for possession;
  • Where Grounds 7 (inherited periodic tenancy) and 7B (immigration status) are relied upon then the notice period is three months;
  • Where Grounds 14A (domestic violence), 14 ZA (offences connected with riot) and 17 (tenancy obtained by false statement) then two weeks’ notice is required.

Our experience is that arrears of rent is the main reason why a landlord serves a notice. To this end this means that a landlord will not be able to contemplate issuing proceedings for possession until there are six months or more arrears of rent.

A Potential Problem

The amended wording of the Housing Act is that:

  • In relation to proceedings issued pursuant to a Notice under Section 8:

“The Court will not entertain proceedings for possession of dwelling-house let on an assured tenancy unless…” notice has been served in accordance with the Act.

Whilst the Notices which have previously been served may have been valid at the time they were served (and the law cannot apply retrospectively), the provision does not dictate what the length of notice should be, it states that unless notice of six months’ length has been given, the court cannot entertain the action. If the action is brought after the new legislation came into effect then it is arguable under this wording that the Court cannot entertain it if less than six months’ notice has been given.

  • In relation to proceedings issued pursuant to a Notice under Section 21:

“The Court shall make an order for possession of the dwelling house if it is satisfied… The landlord…has given to the tenant not less than (two months)(six months) notice in writing.”

In this case the legislation (at the moment) seems to hedge its bets and it may be possible to argue that previously served notices are still valid.

If Courts are reluctant to make possession orders, these are certainly areas that they can use to invalidate what were previously valid notices. It does not appear that this is what the legislature was intending (the explanatory note to the legislation indicates that the intention is to extend the notice period for new notices), but that may not stop the Judges.

Until we see some cases progress it will be difficult to predict how the Courts will interpret this. However, it may be prudent for landlords to serve new notices “without prejudice” to the validity of previously served notices so that time under the new notices will at least start running. Landlords should seek advice in this regard.

Conclusion

Whilst offering great protection to tenants in these difficult times, especially with the winter months approaching, the fact remains that this could cause landlords difficulties if they are relying upon the rent to pay mortgages on the properties.

The best advice to landlords is to open up dialogue with the tenant as soon as there appears to be a problem with the rental payments. If the tenant can afford to make some payment towards the rent, it is better to try to negotiate an interim solution than to go without rent.

Mortgage companies should then be contacted in order to see whether a mortgage holiday can be agreed.

However, landlords should consider serving notice at the earliest opportunity in order to ensure that if solutions are not reached, they will have the option to apply to Court as soon as they are allowed. It would be sensible to try to explain to your tenant that this is a protective measure whilst you try to work towards a solution.

We are able to assist landlords and tenants in trying to resolve these difficulties in these uncertain times.

This article refers to the law applicable to Assured and Assured Shorthold Tenancies. There have been changes to the law relating to other statutory protected tenancies, however we mainly deal with Assured and Assured Shorthold Tenancies and have decided to focus upon these for the purposes of this article.

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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.