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An overview of the Government’s ‘eviction ban’

Tuesday 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 throughout the pandemic. 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;
2. No new possession proceedings through applications to the court to start during the crisis; and
3. Landlords will also be protected as the 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.

How has the Coronavirus pandemic affected the eviction ban?

Fast-forward 7 days and Parliament 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 the most recent updates at the time of writing (16th September 2020):

• Section 8 Notices – the notice period required now varies depending on the Grounds you are relying on, broken down as below:

• Grounds 1-6: The notice has been extended from 3 months to 6 months
• Ground 7: 3 months
• Ground 7A: 1 month
• Ground 7B: 3 months
• 8, 10 and 11: these are the most common grounds. The notice period required depends on the arrears. If they are less than 6 months, a 6 months notice period is required, whereas if they exceed 6 months a 4 week notice period can be served
• Ground 9: 6 months
• Grounds 12 and 13: 6 months
• Ground 14: no notice required
• Ground 14A: 2 weeks
• Ground 14ZA: 2 weeks
• Grounds 15 and 16: 6 months
• Ground 17: 2 weeks
• Section 21 Notices – Section 21 notices are likewise afforded the same treatment, with the notice period now being extended to six months (until March 2021);
• New prescribed Notices – as a result of the above changes, updated Forms 3 and 6A have been published which are to be used. Using an out of date form can mean your notice is invalid.

One final area of interest concerned whether or not a landlord would be able to rely on arrears which accrued during the 6-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”. Section 8 notices can still be issued in reliance any arrears which accrue during the 6-month ban. In short:

• Landlords can still serve the relevant Notices during the ban, but must ensure they now give notice in line with the above and use the correct Form;
• Landlords cannot issue any proceedings whatsoever (even in reliance on an ‘old Notice’) until 20th September 2020 at the earliest;
• As regards ongoing, existing proceedings, these too are now stayed until 20th September 2020; and
• Any evictions, either ongoing or stemming from new Applications, are also stayed until 20th September 2020.

What rights do tenants have when facing eviction from 20th September?

The rights of Tenants will remain largely the same when the repossession stay is lifted on 20th September. Landlords will however be required to provide the Court with certain details regarding the Tenant’s personal circumstances and the impact which the pandemic has had on them or their dependents. The Court will therefore consider this as part of its decision. As such, Tenants would be wise to engage with their Landlord between now and the end of September and make it clear to them what their personal situation is prior to the stay being lifted.

How long does a landlord have to raise a dispute?

As is the case with Tenants, the right of Landlords to raise any issues will remain unchanged when the stay is lifted. Depending on whether or not they had commenced proceedings by the time the stay came into force however, this would dictate whether or not they are required to make efforts to work with Tenants to address rent arrears before issuing Court proceedings. In addition, if the claim relates to arrears of rent, the Landlord must provide an updated rent schedule for the previous 2 years. As such, Landlords should consider such issues sooner rather than later.

How much notice does a landlord have to give a tenant?

At present, the notice that a Landlord has to give to a Tenant depends on what grounds they are relying on – regardless of whether proceedings are commenced on the Section 21 or Section 8 basis. This will remain the case until March 2021 (notwithstanding the fact that the stay will be lifted on 20th September).

How do you fight an illegal eviction?

An eviction will be considered an ‘Unlawful Eviction’ should the Landlord repossess the property without having followed the correct process. An ‘Unlawful Eviction’ can have different meanings depending on the context, though Landlords should bear in mind that it can actually amount to a criminal offence, as well as giving rise to civil liability. Should a Tenant be unlawfully evicted, whilst their options will depend on what basis they wish to bring a claim, such remedies can include seeking injunctive relief (which essentially sees the Tenant reinstated in the property, with the Landlord being compelled to grant access), as well as seeking recovery of damages – including the more serious class of ‘aggravated’ or ‘exemplary’ damages, depending on the severity of the Landlord’s actions. Whilst some classes of “occupier” fall outside the various Acts (such as lodgers), Landlords should always seek legal advice if in any doubt as to their legal position.

How can you successfully defend yourself from eviction?

Whether or not a Landlord is entitled to a Possession Order depends on whether or not they have complied with certain statutory requirements. These depend on whether or not the possession is being sought on a Section 21/no-fault basis, or on a Section 8/fault basis. As such, if the Landlord has not met any/all of the requirements of the base on which they are relying, then the Tenants can raise those issues in an attempt to defend the claim. Likewise, it is always open to Tenants to make counterclaims of their own should they be warranted, such as any disrepair claims or claims of harassment.

Do I pay rent if I’m being evicted?

Tenants are required to pay rent – even if they are being evicted or if they believe the Landlord is neglecting their obligations, for example, if a Landlord is failing to repair the property. The duty to pay rent operates completely independently of any duty on the part of the Landlord. Failing to pay rent amounts to a contractual breach for which the Landlord can commence proceedings against a Tenant.

Can a judge stop an eviction?

The options open to a Judge will depend on exactly what legal basis a Landlord is relying on. For instance, a Judge’s options can be limited if a Landlord is relying on Section 21 as a basis to evict, or one of the Mandatory Grounds if relying on the Section 8 route. Should the Landlord be relying on a Discretionary Ground however, then a Judge has more discretion to refuse to grant a Possession Order as they must generally be satisfied that it is ‘reasonable’ to grant such an Order. By comparison, this discretion is not available if a Landlord is relying on a Mandatory Ground or the Section 21 basis. Regardless which route is relied on, it is always open to a Judge to postpone eviction from the standard 14 days up to a maximum of 6 weeks, provided that the Tenant is able to demonstrate that they will be subject to “exceptional hardship” if they were required to vacate the property within 14 days (as is the norm). 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.