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Possession notice periods and other considerations for landlords during the coronavirus pandemic

Enhanced protection for tenants under the Coronavirus Act 2020

The Coronavirus Act 2020 protects most tenants and secure licensees by requiring, in most cases, that before starting court action the landlord provides the tenant extended notice of intention to seek possession. For notices issued between 26 March to 28 August 2020, the required notice period was three months. Notices issued during this period are unaffected by the further changes outlined below.

The provisions in the Coronavirus Act 2020 have been extended in that from 29 August 2020 landlords must provide six months’ notice to their tenants in most circumstances. However, there are some serious cases where it is right that landlords are able to start progressing within a shorter timeframe. This is because of the pressures these cases place on landlords, other tenants and local communities.

These changes mean that from 29 August 2020:

  • For notices in relation to anti-social behaviour, domestic abuse, rioting and false statement, the required notice periods have returned to their pre-Coronavirus Act 2020 lengths. In some cases, this means that proceedings for anti-social behaviour can be brought immediately after notice has been served. Notice periods on these grounds otherwise vary, depending on the type of tenancy and ground used, between two weeks and one month.
  • Where at least six months of rent is unpaid, a minimum four-week notice period will be required. If less than six months of rent is unpaid, then the notice period is six months.
  • Where a tenant has passed away or is in breach of immigration rules and does not have a right to rent a property in the United Kingdom then a minimum three-month notice period is usually required.
  • A six-month notice period is required for all other grounds, including Section 21 notices and, as highlighted earlier, where accrued rent arrears are less than the value of six months’ rent.

At the expiry of the notice period, a landlord cannot force a tenant to leave their home without a court order. When the notice period expires, a landlord would need to take court action if the tenant was unable to move.

Length of validity of Section 21 notices

Where a landlord gives a tenant a valid Section 21 notice after 29 August 2020, the notice will now remain valid for an extended period, generally speaking, 10 months from the date it is given to the tenant or 4 months from the date specified in the notice as the date after which possession is required.

The validity of Section 8 notices remains unchanged by the Coronavirus Act 2020. Section 8 notices continue to be valid for 12 months after they are served.

Service of more than one notice

If a landlord wishes to serve a new notice in order to take advantage of the new shorter notice periods required for certain serious cases, they should, where they are issuing a new notice of the same type, withdraw the first notice before they serve a new notice.

Local public health restrictions and eviction by bailiffs

To manage the Coronavirus (COVID-19) pandemic, local lockdown restrictions may be introduced in the postcode in which a property is located. If this includes restrictions on entering premises which have been introduced by Government through legislation, guidance will be issued to bailiffs instructing them not to enter properties to carry out evictions.

Landlords and tenants will be notified of any changes in the progression of their case by the court. This measure will be in place for as long as local restrictions described above apply in an area.

Evictions during the Christmas period

Guidance will be issued to bailiffs instructing that they should not enforce possession orders in England and Wales between Friday 11 December 2020 and Monday 11 January 2021.

Repairs, maintenance and inspections

Landlords should take account of government guidance on working safely in people’s homes when resuming repair and maintenance services in properties occupied by tenants.

Landlords or contractors are able to visit most properties to carry out both routine and essential inspections and repairs, as well as any planned internal works to the property. Services should be designed to ensure social distancing is maintained (insofar as possible) and hygiene procedures should be followed.

Where restrictions are put in place in a specific local area, any local advice should also be observed and unless specifically permitted, no work should be carried out in the property unless it is to remedy a direct risk that affects the safety of the tenant(s).

The shielding programme was paused on 1 August. Landlords and contractors can now carry out routine repairs and inspections in households with clinically extremely vulnerable occupants that have been shielding. Landlords and tenants should work together to make prior arrangements to ensure that social distancing is maintained and hygiene procedures should be followed in line with the latest guidance on working safely in people’s homes.

Works to the exterior of properties and to external communal areas

Landlords should be able to carry out works to the outside of dwellings, such as routine maintenance, grounds maintenance and cleaning of communal areas, it is advised contractors comply with relevant guidance on social distancing in the workplace.

In particular, no work should be carried out if it means landlords or contractors may have to enter a household which is self-isolating because one or more family members has symptoms, unless it is to remedy a direct risk to the safety of the household.

Any advice on the measures that remain in place in a local area should also be observed.

Legal obligations to provide regular gas and electrical safety inspections

All landlords should make every effort to abide by existing gas safety regulations – and in the private rented sector, the new electrical safety regulations which apply to new tenancies from 1 July 2020 – providing this can be done in line with guidance on working in people’s homes.

Gas safety inspections should not be carried out in homes that are self-isolating until after the isolation period has ended, unless it is to remedy a direct risk to the safety of the household.

The shielding programme was paused on 1 August 2020. Landlords and contractors can now carry out both routine and essential repairs in households that were shielding. In these cases, landlords and tenants should work together to make prior arrangements to ensure that social distancing is maintained (insofar as possible).

Health and Safety Executive recognises that the restrictions imposed by current measures to minimise the infection risks from COVID-19 may make gas safety and electrical safety inspections more difficult, for example where households are isolating. Under such circumstances, provided the landlord can demonstrate they have taken reasonable steps to comply, they would not be in breach of their legal duties (see below).

Electrical and gas safety in privately rented properties

The new Electrical Safety Standards in the Private Rented Sector Regulations 2020 were made on 18 March and apply to all new tenancies from 1 July 2020 and will apply for existing tenancies on 1 April 2021.

The Electrical Safety Regulations will require landlords to:

  • Have the electrical installations in their properties inspected and tested by a person who is qualified and competent, at least every five years;
  • Provide a copy of the report (known as the Electrical Safety Condition Report or EICR) to their tenants, and to the local authority if requested.
  • If the EICR requires investigative or remedial works, landlords will have to carry this out within 28 days or a shorter period if specified in the report. Written confirmation of the completion of the remedial works from the electrician must be supplied to the tenant and the local authority within 28 days of completion of the works.

The Gas Safety (Installation and Use) Regulations 1998 require landlords to have annual gas safety check on each appliance and flue carried out by engineer registered with the Gas Safe Register and to keep a record of each safety check. Further advice can be found on the Gas Safe Register’s website.

Both regulations are clear on the issue of compliance. With regards to the Electrical Safety Regulations, a landlord would not be in breach of the duty to comply with a remedial notice if the landlord can show they have taken all reasonable steps to comply. With regards to a landlord’s duties under the Gas Safety Regulations, a landlord would not be liable for an offence if the landlord can show they have taken all reasonable steps to prevent the contravention.

A landlord could show reasonable steps by keeping copies of all communications they have had with their tenants and with electricians as they tried to arrange the work, including any replies they have had. Landlords may also want to provide other evidence they have that the installation, appliance or flue is in a good condition while they attempt to arrange works.

Access to property to conduct viewings

Tenants’ safety should be the first priority of letting agents and landlords. People should use virtual viewings before visiting properties in person where possible, in order to minimise public health risks.

If any member of either the household being viewed, or the household undertaking a viewing is showing symptoms of coronavirus or is self-isolating, then a physical viewing should be delayed.

The shielding programme was paused on 1 August. Where tenants have been determined clinically extremely vulnerable and were shielding, landlords and tenants are now able to conduct viewings, but should seek to minimise the number and duration of any viewings. If possible, individuals who are clinically extremely vulnerable should remain outside the property when viewings take place. Visitors should avoid touching surfaces and should clean any surfaces they do touch prior to leaving.

All viewings should take place by appointment and only involve members of a single household. Any visits to a property must be made in accordance with government guidelines on professionals carrying out work in people’s homes and guidelines on protecting yourself and others.

More information is available in the guidance on moving home during the coronavirus (COVID-19) period in England. Any advice on the measures that remain in place in a local area should also be observed.

Houses in Multiple Occupation (HMO) and COVID-19

Moves into HMOs of new tenants are not prohibited. The government has issued guidance on how to minimise the risks of spreading the coronavirus when doing so.

There may be additional risks involved in moving into a HMO at this time, which is why it is important that all involved take reasonable precautions.

During viewings, tenants who share a HMO are advised to stay out of indoor common areas, such as kitchens, bathrooms or sitting areas, during a viewing. If it is not a tenant’s own private room that is being viewed, they can also remain inside this room with the doors closed.

HMO landlords always retain responsibility for the cleaning of common areas and are reminded to take particular care with respect to the conduct of visitors during viewings and any cleaning that may be required before, during or after.

Tenant safety should be landlords’ and letting agents’ first priority in this or any other move. Where restrictions are put in place in a specific local area, any local advice should also be observed.

If a tenant in HMO contracts the virus, landlords are not obliged to provide alternative accommodation for other tenants in the property. Landlords could help by, for example, closing non-essential communal space where it would not be possible to maintain social distancing (e.g. small shared spaces for use by more than one household).

The government has issued specific guidance on what to do if someone in the household has contracted the virus, including self-isolating the whole household for 14 days. Sections 3.9 and 3.10 of this guidance set out information for tenants living in shared accommodation. Landlords may also wish to direct their tenants to government guidance on cleanliness and hygiene for non-medical locations.

Help with mortgage repayments for struggling landlords

Mortgage lenders have agreed to offer payment holidays of up to three months where this is needed due to coronavirus-related hardship, including for buy-to-let mortgages.

On 2 June 2020, the Financial Conduct Authority confirmed that borrowers can apply for an extension to any holiday already taken while extending the window for new applications to 31 October 2020.

The mortgage payment holiday is not automatic, and landlords would need to apply to their lender to see whether they are eligible for this support on a case by case basis. The sum owed remains and mortgages continue to accrue interest during this period. This means that a landlord will still have to repay the money they owe for the months covered by a payment holiday.

Where a tenant is unable to pay their rent in full the landlord – if a mortgagor – should discuss this with their lender.

Further information on mortgages and the support available during the coronavirus outbreak is available from the Money Advice Service and UK Finance.

Nastassia Khilkevich

Jonathan Copper

E-brief - 16th October 2020