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To ban, or not to ban? An overview of the Government’s new ‘eviction ban’

March 31, 2020

On 18th March 2020, the Government announced it was planning to bring into force legislation aimed at addressing the growing concerns surrounding the impact of COVID-19 on the rental sector.

Whilst the initial details were sparse, this has been an area in which we have seen ongoing developments on a near-daily basis.

By way of refresher, the Government’s announcement initially said it intended to introduce three things:

  1. Emergency legislation to suspend new evictions from social or private rented accommodation while this national emergency is taking place;
  • No new possession proceedings through applications to the court to start during the crisis; and
  • Landlords will also be protected as 3-month mortgage payment holiday is extended to Buy to Let mortgages.

The announcement understandably generated a lot of discussion and debate – particularly given the Government was yet to publish the draft legislation in question.

Fast-forward 7 days and Parliament has now passed the Coronavirus Act 2020. Contained within this new Act is Schedule 29 which sets down the nitty-gritty of the new ‘eviction ban’ and how it will operate. The following extracts are of note:

  • Section 8 Notices – the notice period now required to be given by landlords to tenants is three months across the board – regardless of which statutory Ground you are relying on, whether that be Ground 8, 10 or 11 (these being the most common of course);
  • Section 21 Notices – Section 21 notices are likewise afforded the same treatment, with the notice period now being extended from at least two months to three;
  • New prescribed Notices – as a result of the above changes, updated Forms 3 and 6A have been published which are to be used.
  • If necessary, the three-month notice period can be extended to six months, though this will be left to the Government to decide.

What is immediately clear then is that this ‘ban’ is not so much a ban at all – rather a new requirement to give longer notice to tenants. The knock-on effect will of course mean that no ‘new’ possession proceedings will be commenced in cases where the new three-month notice –be that s.8 or s.21– has been served.

Whilst this also seemingly meant that landlords could still commence proceedings relying on an ‘old Notice’ (i.e. one which had already been served before the Coronavirus Act came in this force), that too now seems to have been cast into doubt following a new Practice Direction which came into force as recently as Friday 27th March 2020.

Within this Practice Direction (this having been signed by the Master of the Rolls –the most senior civil Judge in England and Wales– and the Secretary of State for Justice), it states that all possession proceedings, together with all proceedings seeking to enforce an order for possession by a warrant or writ of possession, are stayed for a period of 90 days from the date the Direction came into force (27th March 2020), thus until 27th June 2020.

The Practice Direction therefore seemingly goes further than that of the Coronavirus Act itself, given this means that landlords will now also be unable to issue proceedings which are based on an ‘old Notice’ which was served before the Act was passed. The Practice Direction could also put a stop on any ongoing proceedings which are already before the Court, given there is no differentiation between ‘new possession proceedings’ and ‘ongoing possession proceedings’ – on the contrary, the new Practice Direction simply stays all ‘possession proceedings’ as a whole.

It is also clear that the new Practice Direction stays all eviction proceedings – both ongoing, as well as any new Applications.

One final area of interest concerned whether or not a landlord would be able to rely on arrears which accrued during the 3-month ban itself, and whether this would impact upon a landlord’s ability to serve a s.8 notice. In other words, would these arrears be ignored for the purposes of s.8? Whilst the Act itself is silent on this issue, the answer may be found in the Explanatory Notes which were published by the Government alongside the new Act, in particular, those Notes state that the Act: “does not prevent a landlord from serving a notice of intention to possess, nor does it end a tenant’s liability for rental payments”.

The answer then seems to be that s.8 notices can still be issued in reliance any arrears which accrue during the 3-month ban.

In short:

  • Landlords can still serve the relevant Notices during this 3-month ban, but must ensure they now give three months’ notice and use the correct Form;
  • Landlords cannot issue any proceedings whatsoever (even in reliance on an ‘old Notice’) until 27th June 2020 at the earliest;
  • As regards ongoing, existing proceedings, these too are now stayed until 27th June 2020; and

Any evictions, either ongoing or stemming from new Applications, are also stayed until 27th June 2020.

If you would like advice regarding any of the above, please contact our Dispute Resolution Team on 01204 377600 or email disputeresolution@afglaw.co.uk.