Residential tenants offered further protection, landlords left out in the cold
The snappily titled: The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 came into force on 17 November, although due to the haste of its creation, it was not laid before either House of Parliament and instead brought into effect under powers conferred by The Public Health (Control of Disease) Act 1984(1).
The wording deserves careful review, not least because despite stating it was not laid before either House of Parliament within the text, it prefaces that text by stating that it was laid before the House of Parliament on 16 November.
That technicality aside, these Regulations prevent, except in specified circumstances, attendance at a dwelling house for the purpose of executing a writ or warrant of possession, executing a writ or warrant of restitution or delivering a notice of eviction. Notably they do not change the position in relation to Notice to Quit.
The specified exemptions to the Regulations are where the court is satisfied that the claim is against trespassers who are persons unknown, (to avoid what was described as a licence to trespass that was inadvertently created by previously hasty legislation) or where it was made wholly or partly on the grounds of anti-social behaviour, nuisance, false statements, or substantial rent arrears.
In the case of anti-social behaviour it must be sufficiently serious and the bar is rather high, while in the case of rent arrears they must not only be as much as 9 months (seemingly now not 6 months as stated on government publications dated 28 August 2020) but also those arrears must predate 23rd March 2020. Regrettably for landlords at least, this has the effect of precluding the vast majority of cases.
Finally, there is one slightly unusual exception, albeit one that does reflect at least a degree of careful thought on the part of the legislator: in cases where the person attending is satisfied that the dwelling house is unoccupied at the time of attendance by the death of the occupant then the property can be entered.
These Regulations also prevent use of the procedure set out in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (c. 15) to take control of goods located inside a dwelling house.
Notably, this brings to an end a somewhat shambolic series of events that I have written about previously and should, in theory at least, provide much needed clarity for landlords and tenants alike. However, it is stated to be only until the expiry of Regulation 2 on 11 January 2021. So in essence it is merely a Christmas grace period. Following 11 January, it seems it will be feasible to attend properties to evict in the usual way, subject to any further government changes. However, the requirement for ‘non-serious notices to quit’ is broadly maintained at an all-time high of 6 months, until March 2021 at least. We don’t yet know if it will drop back to the usual 2 months thereafter, for ‘no-fault notices’ (Section 21), nor indeed if the shorter time periods for ‘fault notices (Section 8) will similarly be adopted at that point.
As ever, there are notable exceptions to ‘the 6 month rule’ and these are summarised in a government publication of 28 August as follows:-
- anti-social behaviour (now 4 weeks’ notice)
- domestic abuse (now 2 to 4 weeks’ notice)
- false statement (now 2 to 4 weeks’ notice)
- over 6 months’ accumulated rent arrears (now 4 weeks’ notice) [seemingly now 9 months…]
- breach of immigration rules ‘Right to Rent’ (now 3 months’ notice)”
Of course the penultimate bullet highlights the apparent inconsistency I referred to earlier, but naturally legislation takes precedence over prior publications with no legal effect.
Other useful points are that Section 21 Notices To Quit are now stated to have effect for 10 months and during Court proceedings for possession, commenced after 20 September, landlords are now required to insert details about the effect of the pandemic on the tenant. Quite how the landlord is to obtain this information or indeed assess the validity of any information so supplied, remains a mystery.
In short our advice is to proceed exceptionally carefully… the purpose of the legislation is obviously to defer the expected downturn in the residential property market in 2021, but with the SDLT holiday coming to an end on 1 April 2021 and the current protection conferred on residential tenants by various pieces of legislation seemingly coming to an end at the same time, the potential for a cliff edge is very real. The Courts are already warning that only the most serious of cases will be prioritised thereafter and there is likely to be considerable delay in a Court system that is already creaking at the hinges.
Mark Wrinch is a solicitor specialising in dispute resolution in the Business Services Team at Barker Gotelee Solicitors.