Residential tenancies and mortgages
The Government has published a number of guidance notes for landlords and tenants in the private and social rented sectors to explain the possession action process in the county courts in England and Wales. These deal with both the notices required in the various different situations and the possession procedure. Practitioners, as well as members of the public, should find them extremely helpful.
The National Residential Landlords Association has also published this guidance note for members containing seven "golden rules for dealing with rent disputes".
The relevant provisions relating to residential tenancies in England are Section 81 and Schedule 29 of the Act; and in England The Coronavirus Act 2020 (Residential Tenancies; Protection from Eviction) (Amendment)(England) Regulations 2020, which came into force on 29 August 2020 ("the new England regulations").
These new England regulations increased the notice periods in England from the original three months set out in Schedule 29 of the Coronavirus Act. They came into force 29 August 2020 and only apply in England. The ‘Relevant Period’ in Schedule 29 has now been extended to 31 March 2021.
Prior to 29 August, the usual period for notices seeking to bring a tenancy to an end during the pandemic became three months for all the relevant tenancies.
The position is now more complicated in respect of any notice served on or after 29 August. Doing our best to simplify matters as much as possible, and to focus on the main situations, the position in relation to the following tenancies between 29 August and 31 March 2021 is as follows:
Assured Shorthold Tenancies
Where a s21 notice is served it will be necessary to give six months notice. The usual period for bringing the claim, which is usually six months from the date of the notice, is now 10 months.
The notice required between 26 March and 28 August 2020 was 3 months.
The notice required between 26 March to 23 July was at least 3 months. The notice required since then has been at least 6 months.
Assured tenancies; s8 notices
The amount of notice required now depends upon the Ground relied upon and in rent cases the amount of arrears.
Rent claims; Grounds 8, 10 and 11
In relation to rent claims the core question is: Were there six months rent arrears or more at the date the notice was served? If so, the notice period is four weeks (provided that the notice does not also rely on Grounds 1-6, 9, 12, 13, 15, 16). However, if there are less than six months arrears, the notice period is six months.
Anti-social behaviour grounds
Ground 7A: One month (serious offence, anti-social behaviour – absolute ground)
Ground 14: Notice may state that proceedings can begin immediately (nuisance, annoyance – discretionary ground) (Where this Ground is used in conjunction with other grounds, other than 7A, immediate notice is sufficient).
1: Six months (recover of only or principal home)
2: Six months (mortgagee requires possession)
3: Six months (holiday properties)
4: Six months (property previously let to students)
5: Six months (minister of religion)
6: Six months (substantial works of construction)
7: Three months (recovery after death of tenant)
7B: Three months (immigration status)
9: Six months (suitable alternative accommodation)
12: Six months (breach of obligation of tenancy other than rent0
13: Six months (deterioration of dwelling house)
14A: Two weeks (one partner left due to violence from other)
14ZA: Two weeks (offence during a riot)
15: Six months (deterioration of furniture)
16: Six months (tenancy let in consequence of employment)
17: Two weeks (tenancy induced by false statement)
Between 26 March and 23 July, the notice period required was at least 3 months for all types of notice. After 23 July, the notice period has been at least 6 months, other than for grounds relating to anti-social behaviour which remain at 3 months.
As with assured tenancies, in rent cases (Ground 1) 4 weeks’ notice is required if at least six months’ rent is unpaid at the date the notice is served. In ant-social behaviour cases (Ground 2) the notice can state that the proceedings may be begun immediately.
The new notices giving effect to the above provisions can be found at the above link.
Form 3 – s8 notice
Form 6A – s21 notice
The FCA has confirmed the support firms should give to mortgage customers who are either coming to the end of a payment holiday or who are yet to request one. The FCA is also reminding customers that if they can afford to resume payments, they should.
It would seem that starting, continuing or enforcing possession proceedings is likely to be considered to be a breach of the following principles: Principle 6 (‘A firm must pay due regard to the interests of its customers and treat them fairly’), Principle 7 (‘A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading’) and MCOB 2.5A.1R (‘A firm must act honestly, fairly and professionally in accordance with the best interests of its customer’).
This guidance applies until 31 October.
The FCA have produced additional guidance setting out how firms should provide tailored support to mortgage borrowers who have benefitted from payment deferrals under the current guidance and who continue to face financial difficulties, as well as those whose financial situation may be affected by coronavirus after 31 October.
The guidance published in June will continue to provide support for those impacted by coronavirus until 31 October 2020 – with consumers able to take a first or second 3 month payment deferral until this date.