Extension to Possession Stay – Blog by Wesley Potterton & Amy Kelly

Published on 02/09/2020

The stay on possession proceedings has been extended until Sunday 20th September 2020

Providing there is no further extension to the stay the courts will begin to list/ relist possession cases and you can apply for a bailiff’s warrant of eviction from the Monday 21st September 2020.

(See CPR 55.29 confirming the extension https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55#stay)

The rules regarding re-activation notices remain in place with an amendment to the start date to the 20 September 2020.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-55c-coronavirus-temporary-provision-in-relation-to-possession-proceedings

See our earlier blog for details regarding ‘reactivation notices’. Since then it has become clear that there is no benefit in sending the re-activation notice to the court prior to the end of the stay. The courts will not look them until the stay on possession is lifted. If you haven’t already sent in a reactivation notice, our view is that it is best to wait until Monday 21st September 2020 to send one in (some London courts have been sending back reactivation notices sent early). If you have already sent one in, it may be advisable to send a further notice (updated as necessary) on or after Monday 21st September 2020.

Extended Notice of Possession Periods

The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 “the Regulations” came into force on Saturday 29 August 2020 and the changes apply until the 31 March 2021. See link below:

https://www.legislation.gov.uk/uksi/2020/914/contents/made      

The new Regulations amend schedule 29 of the Coronavirus Act 2020 and take a more nuanced approach to the length of possession notices required from the previous blanket 3-month notice across the board. They provide for 6 months’ notice for most scenarios, whilst accepting that there are certain cases including anti-social behaviour and serious rent arrears (defined as 6 months arrears) where a shorter period of notice is justified.

Unfortunately in some cases the Regulations are confusing and contradictory. There is a real risk an error will lead to your notice seeking possession being invalid, which could potentially be fatal to your possession claim. The below article is a general explanation of the law and does not cover all possible scenarios and does not constitute legal advice. Please contact your social housing solicitor or a member of the housing team for advice about any particular case.

The changes can be summarised as follows:

  • The required notice period for the majority of possession claims has been extended from 3 months to 6 months.
  • The coming into force of the Regulations on Saturday 29th August 2020 created a ‘cut off’ point for the service of ‘old’ 3-month notices by first class post of Wednesday 26 August 2020 and by personal service of 4:30pm Friday 28th August 2020. Any notices served after these cut off dates may be invalid if insufficient notice was given and you will have to serve a new notice! Any notices served by the cut off dates are valid.
  • The notice periods have been reduced for some cases where possession is sought on a variety of different grounds including: Anti-Social Behaviour (ASB), domestic violence or substantial rent arrears (defined as more than 6 months’ rent arrears at the date of notice). For example in a substantial rent arrears case you now only need to provide 4 weeks’ notice. The Schedule attached below explains the different notice periods required, depending on tenancy type and grounds relied upon.
  •  Warning when relying on a shorter notice period you need to be very careful about specifying multiple grounds of possession in your notice seeking possession as you risk invalidating your notice. The rules about whether you can still rely on the shorter notice period if you combine it with other grounds of possession are complex, confusing and vary across the different types of tenure (Rent Act, Housing Act 1985 and Housing Act 1988 tenancies). The schedule explains the effect of combining grounds. If in doubt do not hesitate to contact us for advice as to your particular circumstances.  
  •  The exact amount of rent arrears required to qualify as ‘substantial’ varies slightly across the different types of tenure (Rent Act Tenancy – more than 6 months, Housing Act 1985 and Housing Act 1988 Tenancies at least 6 months).
  • The ‘use it or lose it’ deadline for serving a section 21 notice has been extended from 6 months to 10 months, para 3(7)(b) the Regulations. For any new s21 notices served you will therefore have 4 months to issue possession proceedings after the expiry of the six month s21 notice.
  • Note that the Act and subsequent Regulation do not change the required notice period for cases where possession is being sought on common law grounds (e.g. a tenancy that is determined by Notice to Quit on the basis that the tenant sublet their Council or Housing Association property). Such notice periods remain unchanged and may be regulated by the Protection from Eviction Act 1977. We are happy to provide advice on all non standard possession claims.
  • There are new prescribed forms for Notice Seeking Possession which have been uploaded to the government website. Make sure you use the newest form. We have provided links to the relevant notices for the different types of tenancy in the Schedule.

Schedule

Notice Periods by Type of Tenancy

Rent Act 1977 and Protected Tenancies

  • Case 1 (rent arrears). Where there are over 6 months’ rent arrears at the date of service of the notice seeking possession. In practice this means at least 6 months rent and one penny – 4 weeks’ notice
  • Case 2, ‘conduct which is a nuisance or annoyance to adjoining neighbours or conviction for use of dwelling for immoral or illegal purposes’ (ASB Ground) – 4 weeks’ notice ).
  • Case 10A ‘where Tenant does not have a right to rent (immigration)’ – 3 months’ notice
  •  
  • All other cases listed in schedule 15 Rent Act 1977 – 6 months’ notice

Combining grounds

  • No restriction. You can combine other grounds with Case 1 (providing rent arrears are over 6 months) and Case 2 ASB and still provide 4 weeks’ notice.

Regulation para 3(3)(c)(iii)

Introductory and Demoted Tenancies

  • An ASB reason (Listed in full in sections 84A(3) to (7) and Grounds 2, 2ZA and 2A of Schedule 2 Housing Act 1985) – 4 weeks’ notice
  • All other cases6 months’ notice

Combining grounds

  • No restriction. You can combine any other reason with the ASB reasons for the reduced 4 weeks’ notice period.

Regulation para 3(8) and (9)

Secure Tenancies

  • Ground 1 (rent arrears) – where there are at least 6 months’ rent arrears at the date of service of the notice – 4 weeks’ notice
  • Where there are less than 6 months’ rent arrears at date of service or any other type of breach of tenancy- 6 months’ notice.
  • Ground 2 (nuisance/ annoyance/ illegal purposes/ indictable offence in locality) no notice period required
  • Grounds 2ZA (indictable offence at riot), 2A (Domestic violence and non-perpetrator partner has left) and ground 5 (false statement in obtaining tenancy)4 weeks’ notice required
  • Ground 83ZA absolute ground for possession – 4 weeks’ notice for a weekly tenancy and one month for a monthly tenancy as per regulation 2 which suspends the effect of paragraph 4 of Schedule 29 to the Coronavirus Act 2020.
  • Every other ground 6 months’ notice.

Combining Grounds

  • It is not clear whether you can combine any other ground with ground 83ZA and still rely on the 4 weeks/one month notice period as the regulations are silent on the same.
  • You can combine any combination of Grounds 2ZA, 2A and Ground 5 together and rely on the 4 weeks’ notice period.
  • You can also combine Ground 1 (rent arrears) if the rent arrears are substantial (i.e. at least 6 months arrears at the date of service of the notice) with any combination of the above grounds 2ZA, 2A and 5.
  • It is our view that you can probably combine Ground 2 (ASB) with any other ground (other than ground 83ZA) and still provide no notice. This is based on the wording at para 3(4)(a) of the Regulations (https://www.legislation.gov.uk/uksi/2020/914/regulation/3/made) which amends the Coronavirus Act at Schedule 29 (3) (b) to add in the words “and, in relation to a dwelling-house in England, Ground 2 in Schedule 2 is not specified in the notice’. This appears to disapply the rest of the provision regarding longer notice periods whenever Ground 2 is specified, whether or not other grounds are specified. Similar wording is adopted at regulation 2  “(whether with or without other grounds)”. The new prescribed form below appears to adopt this interpretation. However other legal commentators have expressed contrary opinions.

New prescribed forms

Flexible tenancies

  • 6 months’ notice required in all cases

Regulation para 3(5)

Housing Act 1988 Assured Tenancies (“AT”) and Assured Shorthold Tenancies (“AST”)

Assured shorthold tenancy

  • Section 21 6 months’ notice in all cases.
  • The ‘use it lose it’ 6 month period to issue possession proceedings has been extended to 10 months, so you will have 4 months’ to issue possession proceedings after expiry of the s21 notice.Assured shorthold and fully assured tenancy
  • Section 8 Grounds (set out at Schedule 2 Housing Act 1988)
  •  

6 months’ required

  • Grounds 1 to 6 —- 6 months’ notice
  • Ground 9 —- 6 months’ notice
  • Grounds 12 or 13 – 6 months’ notice
  • Grounds 15 or 16 – 6 months’ notice
  • Grounds 8, 10 or 11 (rent arrears grounds) – where rent arrears are less than 6 months at the date of service of notice – 6 months’ notice3 months’ required
  • Ground 7 (after death of tenant) and/ or Ground 7B (immigration – notice of no right to rent), – 3 months’ notice.
  •  

4 weeks’ notice

  • Ground 7A (mandatory ground for conviction in locality, closure order, breach of injunction etc) – 4 weeks’ notice for weekly tenancy or 1 month notice for monthly tenancy
  • Grounds 8 (mandatory rent arrears ground), 10 & 11 (rent arrears) where the rent arrears at the time of service of the notice are not less than 6 months’4 weeks notice

2 weeks’ notice

  • Grounds 14A (domestic violence and non-perpetrator has left, 14ZA indictable offence in riot) or ground 17 (tenancy granted on false representation)2 weeks notice

            No notice period required

  • Ground 14 (nuisance, annoyance, illegal purposes, indictable offence in locality) —no notice period required

Combining Grounds

  • Grounds 7A and 14 can be combined with any other grounds and you can rely on their shorter or no notice period. Note that if ground 7A is specified (you must provide 4 weeks’ notice for a weekly tenancy or 1 month notice for a monthly tenancy, even if you also relied on ground 14). Otherwise for Ground 14 no notice period will be required.
  • With all the other grounds you must provide the longest period of the grounds you have specified. For example if at the date of service of the s8 notice the tenant has at least 6 months’ rent arrears and you specify grounds 8, 10, 11 (rent arrears) and 12 (on the basis he had a dog in the property without consent) you would have to provide 6 months’ notice. Therefore you should avoid specifying any non short notice grounds if it can be avoided, to avoid the risk of your notice being invalid.
  • We are of the view that it is possible to serve multiple notices to various breaches, for example one notice relying on ground 8,10 and 11 where there are at least 6 months rent arrears giving 4 weeks notice, and a separate notice for ground 12 tenancy breaches which is 6 months. If possession proceedings are issued prior to the expiry of the second notice you will not be able to rely on it during those proceedings, although if the original claim is contested, there may be scope to amend the pleadings to rely on it at a later date, once expired.

New prescribed forms

Section 8 notices (Rent arrears, Anti-Social Behaviour etc) are in Form 3 see link below”

https://www.gov.uk/guidance/assured-tenancy-forms#form-3

Section 21 notices are in Form 6A see link below:

https://www.gov.uk/guidance/assured-tenancy-forms#form-6a