Housing Law Update by Amy Kelly

Published on 27/03/2020

HOUSING LAW UPDATE

So the Coronovirus Act 2020 has passed (New Doc 03-27-2020 08.00.19) and section 81 states that Schedule 29 makes provision about notice periods in respect of residential tenancies. It doesn’t prevent evictions – but the judiciary has stepped in and covered that (see link below) – probably no evictions for the next 3 months.

NOTICES

Schedule 29 is in force as of 26th March 2020 and we are now in the “relevant period” which will remain in force until 30th September 2020. It applies in England and Wales.

What does Schedule 29 do? Well, it doesn’t do what the media have been reporting (but the Judicary have done that…see below)

It does not prevent the issue of possession claims for extant notices (BUT SEE BELOW).

It ONLY affects the length of notices to be served during the relevant period. It does not stop you serving a notice, however for the following type of notice, rather than following the previous prescribed notice period, the notice period must be at least 3 months AFTER date of service Рso if you serve by posting through the door on a Monday 30th March 2020 assuming this is in force the notice  (in a belt and braces approach) should not expire before 1st July 2020:

Rent Act Notices to Quit under the Protection from Eviction Act (para 2)

Secure tenancy s83 notice (para 3) and absolute ground notice s83ZA (paragraph 4)

Flexible tenancy s107D notice (paragraph 5)

Assured tenancy s8 notice (paragraph 6)

AST s21 Notice (para 7)

Introductory Tenancies s 128 Notice (para8)
Demoted tenancy s143E notice (para 9)

The prescribed forms and prescribed information where there are no prescribed forms have been modified so that there are deletions and substitutions where other time periods are referenced e.g. where the notice says something like “Court proceedings cannot be begun, until after this date” it will now go on to state “which cannot be earlier than three months from the date this notice is served” Paragraphs 10-12 deal with modifications to prescribed forms/information.

We await to see if a new prescribed notices come out, or if you are expected to modify the ones you have, which you will have to do for certain notices in any event.

IT DOES NOT have any impact on the notice period to be give for a licence or non-secure tenancy (whether protected or excluded from the Protection From Eviction Act) – so these notices will still be of 4 weeks or ‘period of tenancy’ duration where that is longer e.g monthly tenancies.

JUDICIAL  SUSPENSION OF POSSESSION CLAIMS FOR THREE MONTHS

I had initially written: that in practice whether you will be able to get possession proceedings listed and bailiff warrants executed will depend on your local court. There is some England and Wales Guidance on attendance at court – telephone hearings/remote attendance but most seem to have pulled the possession lists for at least the next 3 weeks and there is little inclination to list anything. Some bailiff’s are not executing any warrants due to not wanting to enter homes/availability of bailiffs. I can now see why because…

Last night there was a press release from the Ministry of Housing, Communities and Local Government (see link here https://www.gov.uk/guidance/government-support-available-for-landlords-and-renters-reflecting-the-current-coronavirus-covid-19-outbreak )

where the Master of the Rolls, together with the Lord Chancellor’s agreement, has taken the decision to suspend ALL on-going possession action – all cases in court at present or on the cusp of issue will not be listed or relisted for an initial period of 90 days, but this may well be extended.

So NO POSSESSION HEARINGS FOR AT LEAST 3 MONTHS WHETHER ISSUED, WHETHER PENDING TRIAL, WHETHER ABOUT TO BE ISSUED.

I assume (but the details are absent) that no warrants will be executed for possession orders already obtained but contact your local court to be sure.

It appears to apply to every type of possession claim, including those not conveyed by the Coronovirus Act, save licences excluded from the Protection from Eviction Act appear not to be covered. It covers England and Wales.

You can still serve your notices, you can still attempt to liaise with the Local Authority for abatement notices etc, it does not cover Closure Orders and Magistrates’ Court are still covering urgent work (again I’m happy to help). It also does not prevent you making an application for an injunction where necessary.

INJUNCTIONS

Individual Courts are deciding how to deal with emergency papers – such as without notice injunctions. I remind myself that the County Court is unitary so it may be possible to issue in a compliant court with a good system (bigger courts will be best) than a smaller one-court court. I am told that Manchester will accept such applications by email – they will print the paper work out x3 and the papers will be initially reviewed by a judge (without attendance of the Claimant by any means). It remains to be seen if other courts will do the same. Good luck calling your local court to see what arrangements they are making.

I would advise that if you consider a without notice application is necessary that the covering letter asks the judge to consider the matter on the papers or with counsel (me- happy to help!) or solicitor via a telephone/skype for business call. I would advise that any supporting witness statement is clear and brief (nothing rambling) and headlines the relevant legal issues:

Is this anti-social behaviour within the meaning of the act?

Just and convenient test?

Use/threat of violent/significant risk of harm for POA/exclusion

Exceptional circumstances for without notice – in particular risks of service without an injunction in force means claimant may not be able to serve at all, risk of reprisals etc

Do not expect to get an exclusion order ever, but you can ask if it is an extreme case. Liaise (to the extent it is possible) with police re: possibility of a bail away.

Good luck – we’ll get through it and hope you stay safe and well.

Amy Kelly
Head of Housing
12CP Barristers