26 Mar 2020

On 18 March 2020 the government announced it would introduce a "complete ban on evictions and additional protection for renters" affected by COVID-19; with the ban to apply to both social and private rented sector tenancies. 

The vehicle for introducing such changes into legislation was the Coronavirus Bill – its amended form being laid before Parliament on 24 March 2020; with the new provisions contained within 'Schedule 29 Residential Tenancies: Protection From Eviction'. Following agreement by both Houses on the text of the Bill it received Royal Assent on 25 March. The Bill is now an Act of Parliament (law).

Schedule 29 of the Coronavirus Act 2020 (the Act) does not quite reflect the statements made by the government.

What does the Act change?

Instead of providing for a complete ban on residential evictions across the board the Act merely extends the statutory notice period for most (but not all) residential tenants to three months. The Act does not contain a ban on the issuing of possession proceedings. The requirement for a notice to provide for a three month statutory notice period will apply from the day after the Act came in to law and will continue to apply until 30 September 2020, but with a proviso that this period can be extended further. The Act also contains a provision for extending the three month notice period up to six months.

The types of tenancies caught by the change are:

  • Secure tenancies
  • Flexible tenancies
  • Introductory tenancies
  • Assured tenancies
  • Assured Shorthold tenancies
  • Demoted tenancies
  • Rent Act tenancies (where in addition to extending the notice period to 3 months, there will also be a requirement for the landlord to serve a Notice of Intention to Commence Possession Proceedings containing prescribed information).

The requirement for the extended notice period, is not, as originally anticipated, limited to cases where the tenant has fallen in to arrears as a consequence of COVID-19, and will apply irrespective of the basis for service of the notice. This clearly accords with the government's lockdown policy announced on Monday 23 March 2020.

Of note, is the fact the Act does not extend to cover residents occupying under licence agreements, service occupancy agreements or contractual tenancies. As such, a swathe of people living in domestic violence refuges, hostel accommodation, Mobile Homes Act residents and those housed in temporary homeless accommodation, do not receive any protection via the Act.

What about existing notices and proceedings?

The Act does not address the position as regards notices that were served upon tenants prior to the coming in to force of the new requirements. It must therefore be presumed that such notices will remain valid. Other than requiring compliance with the extended statutory notice period requirement, the Act does not contain anything to prohibit a landlord commencing a possession claim. Technically therefore, it would appear that a landlord will be able to commence a possession claim immediately that the date specified in the notice (after which proceedings can be commenced) has passed. This being the case, unless there are subsequent amendments, the Act would not prevent a possession claim being commenced where for example a Section 21 notice expires a few days after 26 March 2020 – when the new statutory notice period requirements came in to law.

Whilst the Act does not prevent landlords from commencing possession claims, this lacuna does however appear to being filled, albeit in a piecemeal and indirect manner, by the Courts. Various Court circuits/regions are vacating hearings and adjourning all existing possession claims and scheduled evictions for a 3 month period. Whilst a landlord may therefore be able to commence a possession claim, it appears the proceedings will, in most cases, be immediately adjourned for 3 months. This being the case, it appears that notwithstanding the many gaps in the Act, the complete ban on evictions is likely to be the position on the ground for landlords.

Practical considerations

The Act also includes provisions amending (only for the relevant period up to 30 September 2020, or any extension to that date) existing regulations that deal with prescribed forms of notice to ensure that key information within the notices reference the three month notice period rather than current notice periods. Landlords and letting agents should therefore ensure that they now use an updated prescribed form of notice. Furthermore, that once the relevant period comes to an end and the statutory notice period defaults back to current requirements, any notices served after that date are in the correct form. Failure to serve the correct prescribed form of notice could ultimately result in any subsequent possession claim being dismissed.

Of particular note to private sector landlords and managing agents is the suggestion by the government in its announcement on the 'complete ban on evictions', that the pre-action protocol for possession proceedings will be extended to bring private renters within its scope. On this point the government stated that it "has worked with the Master of the Rolls to widen the 'pre-action protocol' on possession proceedings to include private renters and to strengthen its remit. This will support the necessary engagement between landlords and tenants to resolve disputes and landlords will have to reach out to tenants to understand the financial position they are in". Quite how this objective will be achieved is unclear, given the majority of private sector renters occupy under Assured Shorthold tenancies and are likely to be served with a Section 21 Notice Requiring Possession – which does not require the landlord to specify the reason for the service of the notice. Perhaps this is a further indication that the days are numbered for Section 21, as Section 8 Notices do require a landlord to specify the basis for the possession claim and so would fall within the pre-action protocol.

For a number of years social landlords have had to comply with a pre-action protocol when dealing with possession claims and so it would not be a particularly difficult task to broaden out this well-trodden pre-action protocol to cover private renters. As at the time of writing the Ministry of Justice has not released an amended pre-action protocol for possession claims, however a further article will be circulated when it does.

It is unclear whether the widening of the pre-action protocol for possession claims is likely to be a temporary measure, covering a reasonable period of time for any COVID-19 arrears to be worked through and resolved between landlords and tenants, or whether the pre-action protocol may possibly remain as a permanent fixture for private sector landlords and letting agents to have to deal with. Either way, once the amended pre-action protocol is released, landlords and letting agents will need to quickly familiarise themselves with it, and understand the additional hoops they will be expected to jump through when seeking to recover arrears of rent; and of the implications for them of non-compliance with the pre-action protocol.