Residential tenancies in England: The latest twists in the Covid rules

In our Autumn edition of Agricultural Lore (see Covid latest on residential possession proceedings) we explained the measures that the Government had taken to protect residential tenants from facing eviction, during the pandemic. These measures were prescribed to last for the “Relevant Period” specified under Schedule 29 of the Coronavirus Act 2020, which was initially until 30^th June 2020 and then extended until 30^th September 2020.

Some of the measures described in that article have now been updated. This article sets out these latest changes and the current position in relation to residential tenancies.

Further extension to notice period

In our last article we discussed the Coronavirus Act 2020 (Residential Tenancies: protection from Eviction) (Amendment) (England) Regulations 2020 which were introduced on 29 August 2020. These Regulations extended the “Relevant Period” to 31 March 2021. The minimum notice period for serving a section 21 notice in respect of a tenancy in England was extended from three months to six months, while the period for issuing proceedings for an order for possession was increased to ten months from the date on which the notice was given.

Since then a landlord has had to wait six months before seeking to recover possession of a residential property. The landlord has also needed to ensure that possession proceedings are commenced within ten months of the service of a notice to quit.

On 31^st March 2021 the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 (2021/284) came into force. These Regulations extended the Relevant Period for these emergency measures from 31^st March to 31^st May 2021.

Exceptions to the restrictions

On 11^th January 2021 the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (2021/15) came into force in England.

These Regulations set out the general rule that attendance at a residential property was not permitted for the purpose of executing a writ or warrant of possession or for delivering a notice of eviction. However, the Regulations also set out a list of exceptions to this general rule where attendance was permitted. These Regulations were due to expire on 21^st February 2021.

An almost identical set of regulations – the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 (2021/164) (the “February 2021 Regulations”) – were brought into force in England on 22^nd February 2021. These applied the same list of exceptions and these were to remain in force until 31^st March 2021. On 30 March 2021, the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021 (2021/362) extended the operation of the February 2021 Regulations until 31^st May 2021. This remains the current position.

The effect of the February 2021 Regulations is that evictions can still be carried out where the Court is satisfied that the notice, writ or warrant relates to an order for possession made:

• against trespassers
• wholly or partly on the grounds of anti-social behaviour, nuisance, domestic abuse, false statements or the death of the tenant where the person attending has taken reasonable steps to satisfy themselves that the property is unoccupied.
• wholly or partly on a ground involving rent arrears, where the amount of unpaid rent amounts at least to a sum equivalent to six months’ rent.

Aside from the exceptions listed above, residential evictions remain suspended until at least 31^st May  2021.

Summary

As the UK gradually moves from stage to stage along the roadmap out of lockdown, it remains to be seen how quickly the Government lifts these restrictions on possession proceedings. Any landlord wishing to take possession of a residential property let out under the Housing Act 1988, will need specialist guidance to ensure they do not become ensnared in the multiple layers of procedural hurdles, which are currently in place.  Even when all restrictions are finally lifted, there will be a substantial backlog of cases for the Courts to process. The considerations facing a landlord will vary from case to case. However, if the main issue is rent arrears and it is known that the tenant has financial resources, it may prove a more attractive option in the current circumstances for a landlord to sue for the unpaid rent arrears instead of seeking possession of the property.