COVID 19 – TOP 3 COMMON QUESTIONS FOR RESIDENTIAL LANDLORDS AND TENANTS
It has been reported that there has been a recent increase in landlords seeking to take steps to evict their tenants. Certainly, we have been receiving a large number of enquiries from both landlords and tenants of residential properties wanting to know where they stand in light of the restrictions imposed to seek to combat the spread of Covid-19.
Most private sector residential lettings are granted under assured shorthold tenancies, usually of six- or twelve-months’ duration. Where that type of tenancy is in place, the previous position was that the landlord could usually only evict the tenant if they had first served a notice under either section 21 of the Housing Act 1988 (the no fault eviction process, usually based on two months’ notice) or under section 8 of the Housing Act 1988 (where the landlord seeks possession because the tenant is in some way in breach of the tenancy, for instance where the tenant’s rent is in arrears). In the past, if these notices were served correctly then the court would usually make a possession order in the landlord’s favour and, once the date for possession had arrived, the landlord could proceed with the eviction.
Much has now changed, however, as we explain below.
CAN LANDLORDS EVICT TENANTS DURING THE COVID-19 CRISIS?
In short, no. The government has now taken steps to protect tenants from eviction during the current pandemic.
The law has changed so that the period of notice a landlord must now give to its tenant before taking steps to seek possession of the property is increased to 3 months. This change will continue in force until 30 September 2020, but it is possible that date could be extended.
A new Practice Direction to the Civil Procedure Rules has also been brought into law which has the effect of putting on hold all possession proceedings as well as any action to enforce any existing possession order for a period of 90 days from 27 March 2020.
The rationale for these changes is of course to prevent what could have been a rush of possession claims and an ensuing housing crisis at a time when it would have been extremely hard or, potentially, impossible for tenants to seek to find alternative accommodation.
DO TENANTS STILL HAVE TO PAY RENT?
Yes. The contractual obligation on the tenant to pay their rent remains in place despite the changes made to the law in relation to possession proceedings. There has been no general suspension of rent payment obligations.
There is a need for everyone to be practical, however. Landlords and tenants who find themselves facing financial difficulties should communicate with one another as soon as they are able with a view to trying to work together at this time. A better understanding of each other’s positions should assist to put in place an agreement which could include a temporary rent reduction, changes to the rent payment date or frequency of rental payments. Any variations should be recorded in a writing to avoid future dispute.
The government has stated that it “will ensure that support is available where it is needed for landlords” who should approach their lenders as soon as they believe their ability to service their loans could be adversely impacted. The government and banks have now extended the 3-month mortgage holiday scheme from owner-occupied loans to include buy-to-let mortgages.
Any proposed variations to the tenancy agreement could have implications in time so we recommend you speak to one of our team as soon as possible if you are uncertain. We can advise on how the variation of terms could best be structured and then recorded and we can also offer guidance on how proposed variations would interact with the existing terms of the tenancy.
WHAT TO DO IF I THINK A TENANT HAS VOLUNTARILY MOVED OUT?
Under the Protection from Eviction Act 1977, an unlawful eviction is a criminal offence, so landlords need to tread very carefully when re-taking possession. A tenant who has been unlawfully evicted can also seek an injunction from the County Court requiring the landlord to reinstate the tenant to the property. Such claims can include a claim for compensation for the costs incurred as a result of the unlawful eviction.
Since it is a criminal offence for a landlord unlawfully to evict their tenant, now more than ever great care must be taken in cases where the landlord believes that a tenant has vacated the property before going back into possession and seeking to re-let. The law requires the landlord to show that they had reasonable cause to believe that the tenant had ceased to occupy the premises, so landlords should record the steps they have taken to verify that a tenant has, in fact, left the property with no intention to return, ideally seeking written confirmation from the tenant in all cases to guard against any future complaint.
Wolferstans Solicitors has a specialist Property Litigation team that remains fully functional during these difficult times. We are able to advise tenants and landlords on their options available. Please contact either Alex Jeffery (01752 292350) or David Scarrott (01752 292208) if you wish to discuss matters with us.