landlords-2020
Recovering possession of residential property under recent COVID-19 Guidance
  • 28th Jul 2021
  • Article written by Alec Davie
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It has been well documented that since the inception of the pandemic, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) has sought to create further protection for tenants including longer notice periods, additional requirements to obtain a possession order and also a moratorium on evictions.

 

However, following the Government’s recent updates to the regulations, from 01 June 2021 the protection for tenants has been considerably reduced. While some restrictions remain in place, certain aspects such as the length of notices and accessibility for landlords to enter possession proceedings are now more favourable to landlords, however this does not mean that tenants could not have grounds to object.

 

Procedure to recover possession

 

The two main forms of Notice that landlords are able to serve on their tenants in an attempt to recover possession of residential property are Section 21 and Section 8 Notices. The decision of which one to rely upon depends on the circumstances.

 

Section 21 Notice

 

A landlord is able to serve a s21 Notice on a tenant if:

 

  1. The notice period expires on or after the end of their tenancy; or
  2. During a tenancy that has no end date (a periodic tenancy).

 

The s21 Notice gives the tenants a 4 month notice period (reduced from 6 months from 01 June 2021) to vacate the premises. If the tenants fail to do this then the landlord is able to commence Court proceedings to recover  possession. The landlord will have 8 months from when the Notice has been served on the tenant to bring these proceedings if the tenant does not vacate within the 4 month notice period.

 

While this reduction in the notice period favours the landlord, they do still have further requirements to fulfil prior to the Notice being served. For example, the s21 Notice cannot be brought within the first 4 months of a tenancy and prior to the Notice being served the tenant is likely to need to be provided with an EPC, Gas Safety Certificate and How to Rent Guide (subject to some exceptions).

 

Another new addition to the s21 Notice since the Coronavirus Act 2020 is that the landlord must file a Coronavirus Notice after commencing proceedings to give the Court notice of any financial difficulties and/or benefits that the tenant is experiencing as a result of coronavirus. If the landlord supplies information of any adverse financial circumstances which the tenant is facing then this may adversely affect their ability to obtain possession.           

 

Section 8 Notice

 

A section 8 Notice differs from a s21 Notice as the landlord will need to rely on a specific ground to successfully obtain possession through this notice, instead of it being served at a certain time in the tenancy.

 

The grounds for possession under a s8 Notice are vast and range from rent arrears, to anti-social behaviour, with the most common one being relied upon being rent arrears. Each of these grounds have their own notice period, however from 01 June 2021 most of these have been reduced from 6 months to 4 months, just like the s21 Notice.

 

However, some notice periods for certain grounds are now even shorter, such as rent arrears of over 4 months being reduced to 4 weeks. In addition to this, further changes are set to be made in relation to rent arrears from 01 August 2021, where the notice period for at least 2 months’ worth of rent arrears will be reduced from 4 months to 2 months.

 

Once again, if the tenant fails to vacate the property within the notice period the landlord can commence Court proceedings to attempt to obtain possession. Despite this, the tenant always has an opportunity to try and oppose the claim and to prevent the Court granting a possession order.

 

The tenant’s opportunity to oppose the landlord’s attempt to recover possession

 

When a tenant is served a Notice to vacate the property, they have the opportunity to oppose this if the landlord has not taken the correct steps prior to serving the Notice or if it is based upon grounds for possession which cannot be established.

 

If the Notice is served with a discrepancy, such as the timeframe or grounds, the tenant could raise this with the landlord and provide reasoning as to why they are not vacating the property. This should be sent to the landlord prior to the notice period ending so that the landlord does not take any further steps without knowledge of the tenant’s position. 

 

Additionally, if proceedings are later brought by the landlord, the tenant could thereafter seek to defend the claim upon the basis that the notice should be deemed invalid or that the requisite grounds have not been established. The tenant would be well advised to obtain legal advice on their position as early as possible to prevent Court proceedings.

 

How Whitehead Monckton can help

 

Whether you are a landlord seeking possession of your property or a tenant who believes the landlord has falsely attempted to obtain possession, our Dispute Resolution team has a variety of experience in these disputes.

 

The advice on what notice a landlord can use, how to proceed with possession proceedings or equally if it is reasonable to object to a Notice will depend upon the context of your matter and the circumstances to date. By understanding the circumstances around your matter our team will be able to provide you with balanced and valuable advice as to the potential next steps and merits surrounding a claim for possession from the point of view of the tenant or landlord.

 

Please ask for a Dispute Resolution secretary when calling our offices if you wish to enquire about obtaining advice in relation to notices for possession.