Further extension to restrictions on eviction – but with a change….

Throughout the pandemic, restrictions have been imposed on landlords’ ability to commence possession proceedings and evict tenants. This has applied to both the section 21 “no fault” route, which in normal times simply requires a landlord to give two months’ notice to quit without having to provide any reason, and also to the section 8 route, which is based on a breach of the tenancy by the tenant – usually non-payment of rent.

Given the further lockdown recently ordered by the government, it was no surprise that the restrictions on evictions – which would otherwise have expired on 11^th January 2021 – have recently been extended.

A Statutory Instrument laid before Parliament on Friday 8^th January, the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021, came into force on 11^th January and has extended the existing restrictions until 21^st February 2021. This means that even where a possession order may already have been granted, court bailiffs and enforcement officers will not actually be able to attend at the premises to enforce a warrant of possession and evict the tenant.

Interestingly, however, at least one aspect of the restrictions has been relaxed. The Regulations do provide exceptions as to when evictions can proceed, and the current Regulations state that an eviction can take place where the Court is satisfied that “the case involves substantial rent arrears”

‘Substantial rent arrears’ are defined as

“a case involves substantial rent arrears if the amount of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent.”

This is a change from the preceding Regulations in two ways:

1. the arrears previously had to be equivalent to at least 9 months’ rent rather than 6; and
2. there is now no stipulation that arrears which arose after 23^rd March 2020 (i.e. which arose because of pandemic-related issues) cannot be taken in to account.

The previous Regulations in effect prevented the court from taking into account any arrears which had arisen after the start of the first lockdown, in order to safeguard tenants who had found themselves adversely financially affected, for instance by being furloughed or losing their job.

That protection has been removed and it does now appear that a court could find that “substantial rent arrears” exist, so as to satisfy the exception and allow eviction to proceed, even where the arrears have all arisen after the onset of the pandemic.

It remains to be seen how willing judges are to use these powers in the face of rising numbers of cases of Covid 19 and against a background of a general tightening (rather than relaxation) of restrictions on movement and association.

It seems likely that the restrictions will be extended further beyond 21^st February, but we shall have to wait and see whether the protection afforded to tenants is further diluted.

Change to the “How to Rent” booklet

Landlords will (or at least should!) be aware that they are required to provide certain mandatory information to tenants before the tenant moves into a property let on an assured shorthold tenancy. One of those items is a copy of the “How to Rent” booklet published by the Ministry of Housing Communities and Local Government.

The booklet must be served on the tenant before a section 21 notice can be served for all new and replacement tenancies entered into since 1st October 2015. If the booklet was served previously served, there is no requirement to re-serve it at the start of each ‘replacement’ tenancy unless it has in the meantime been updated.

Landlords should therefore be aware that the latest periodic revision to the “How to Rent” booklet was published on 10^th December 2020, and that if entering into a new assured shorthold tenancy, or a “replacement tenancy (i.e. one which is between the same parties and in respect of the same property after the expiry of an earlier fixed term AST), they must serve a copy of the new version of the booklet on the tenant.

The actual changes to the booklet are fairly minor – incorporating reference to new electricity safety regulations – but the important point for all landlords to consider is whether they need to serve a copy on their tenant before giving notice to quit.

Even if it wasn’t served before the tenant moved in, this can be rectified by serving it afterwards – the only requirement is that a copy must have been provided before any section 21 notice is served.

If you have any landlord and tenant issues that you require assistance with, please do get in touch – by telephone on 0161 926 9969 or by email to markt@mlplaw.co.uk.