Possession Proceedings: not over yet

Residential tenancies and possession proceedings

On 8 September 2021, the Government laid before parliament the Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (SI 2021/994) (Regulations). The Regulations apply in relation to England.

Regulations have again been amended to alter the required notice to be given when the landlord serves notice pursuant to Section 8 and Section 21 of the Housing Act 1988 to evict residential tenants.

With effect from the 1 October 2021, the notice period that must be given in notices seeking possession of residential properties in England reverts to the pre-pandemic notice period. The Regulations contain transitional provisions that mean the changes will not apply to notices served before 1 October 2021.

The Regulations also introduced new prescribed forms of notice under section 8 (Form 3) and section 21 (Form 6A) of the Housing Act 1988. From 1 October 2021, care should be given to making sure the most up to date form is used.
Between 1 June 2021 to 30 September 2021, if a landlord wants to serve a section 21 notice to terminate an assured shorthold tenancy, they need to give the tenant a minimum of four months’ notice prior to commencing possession proceedings. The claim will then need to be issued at court within eight months from the date the notice was served on the tenant.

If a landlord served a Section 8 notice between 1 June 2021 and 31 July 2021 when the rent arrears are less than six months (relying on grounds 8, 10 and 11 in relation to rent arrears), the landlord was required to give the tenant no less than four months’ notice.

If the landlord serves notice as above between 1 August 2021 and 30 September 2021 when the rent arrears are less than six months, they would need to give a minimum of two months’ notice prior to starting possession proceedings.
If there are more than four months of rent arrears at the date of serving the section 8 notice between 1 June 2021 until 30 September 2021, the landlord will be required to give the tenant a minimum of four weeks’ notice prior to starting possession proceedings.

From 31 May 2021, bailiffs are able to execute possession orders in the usual manner unless the tenants have covid-19 symptoms. There is of course the risk that tenants who may not want to leave the property may seek to take advantage of and abuse this caveat.

Due to the varying notice periods that have been in force over the last 12 to 16 months, we recommend that landlords or agents should seek advice on the validity of the notice prior to commencing possession proceedings.

Commercial tenancies and possession proceedings

The Government announced on 16 June 2020 that the restrictions imposed on landlords in respect of forfeiture of commercial tenancies were being extended from 30 June 2021 to 25 March 2022. Other measures were also announced including the restriction on pursuing commercial rent arrears recovery and the ability to serve statutory demands and winding up petitions were also extended to 25 March 2022 and 30 September 2021 respectively. However, landlords are still able to pursue tenants for rent arrears in the usual way by making money claims through the courts.

Possession proceedings return to pre pandemic levels from 1 October 2021

Regulations laid before Parliament on 8 September 2021 confirm that notice periods under Section 8 and Section 21 of the Housing Act 1988 to evict residential tenants will return to pre-pandemic levels from 1 October 2021 and will contain transitional provisions that mean the changes will not apply to notices served before 1 October 2021. Regulations also introduced new prescribed forms of notice under section 8 (Form 3) and section 21 (Form 6A) of the Housing Act 1988. From 1 October 2021, care should be given to making sure the most up to date form is used.

Here to Help

If you need advice on possession proceedings, please contact Hayley Grantham, Solicitor specialising in Property Litigation or John Wagstaffe, Partner and Head of Property Litigation.

Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.