Possession and COVID: new and reactivated cases Dominic Preston, Ben - PowerPoint PPT Presentation

Possession and COVID: new and reactivated cases Dominic Preston, Ben Chataway, Alice Irving @DoughtyStHSW

COVID – notices and technical defences Ben Chataway b.chataway@doughtystreet.co.uk

Notices – section 21 Housing Act 1988 Date the notice was served Notice period Form 24 March 2020 or before 2 months (valid for 6) Form 6A (1 June 2019) s.21 Housing Act 1998 Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 25 March - 28 August 2020 3 months (valid for 6) Form 6A (26 March 2020) Para. 7 Sch. 29 Coronavirus Act 2020 Para. 12(2) Sch.29 29 August - 1 September 6 months (valid for 10) Form 6A (29 August 2020) 2020 Coronavirus Act 2020 (Residential Reg. 3(11)(b) and para.12(2) Sch.29 Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, reg. 3(7) 2 September - 31 March 2021 6 months (valid for 10) Form 6A (2 September 2020) Coronavirus Act 2020 (Residential Assured Tenancies and Agricultural Occupancies Tenancies: Protection from Eviction) (Forms) (England) (Amendment) and Suspension (Amendment) (England) Regulations (Coronavirus) Regulations 2020 2020, reg. 3(7)

Notice on or before 24 March 2020 Section 21 Housing Act 1988 “(1) … on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied- ... (b) the landlord … has given to the tenant not less than two months ’ notice in writing… … (4D) … proceedings … may not be begun after the end of the period of six months beginning with the date on which the notice was given … … (8) The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) ...”

25 March – 28 August 2020 Schedule 29 Coronavirus Act 2020, para. 7: “Section 21 of the Housing Act 1988 … is to be read, in relation to notices given under subsection (1) or (4) of that section during the relevant period, as if— (a) in subsection (1)(b) for ‘two months’ there were substituted ‘three months’…” No change to section 21(4D) (six months)

29 August to 31 March 2021 (c (cont.) Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, reg. 3 “(7) In paragraph 7 (modification of section 21 of the Housing Act 1988: notice of possession proceedings in relation to assured shorthold tenancies) — (a) in paragraphs (a) and (b), for ‘three months’ substitute ‘six months’; (b) after paragraph (b) (and before ‘and’ at the end of the paragraph) insert — ‘( ba ) in subsection (4D) for "six months” there were substituted “10 months”’…”

29 August to 31 March 2021 Para. 13 of Schedule 29 CA 2020 : “(1) The relevant national authority may by regulations made by statutory instrument amend this Schedule — (a) to alter a reference to three months in this Schedule into — (i) a reference to six months, or (ii) a reference to any other specified period which is less than six months, or (b) to alter a reference which has been altered by virtue of paragraph (a) or this paragraph ( but not so as to result in the reference being to a specified period of more than six months ). (2) Sub-paragraph (1) applies to references in this Schedule whether or not they are contained in text which is to be treated as if inserted or substituted into another enactment.”

29 August to 31 March 2021 (c (cont.) Para. 14 of Schedule 29 CA 2020 : “(1) Any power to make regulations under this Schedule— … (c) includes power to make supplementary, incidental, consequential, transitional, transitory or saving provision (including provision modifying enactments or amending this Schedule)”. (See also section 81: “Schedule 29 makes provision about notice periods in relation to possession proceedings in respect of certain residential tenancies etc ”)

Notices – section 21 Housing Act 1988 Date the notice was served Notice period Form 24 March 2020 or before 2 months (valid for 6) Form 6A (1 June 2019) s.21 Housing Act 1998 Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 25 March - 28 August 2020 3 months (valid for 6) Form 6A (26 March 2020) Para. 7 Sch. 29 Coronavirus Act 2020 Para. 12(2) Sch.29 29 August - 1 September 6 months (valid for 10) Form 6A (29 August 2020) 2020 Coronavirus Act 2020 (Residential Reg. 3(11)(b) and para.12(2) Sch.29 Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, reg. 3(7) 2 September - 31 March 2021 6 months (valid for 10) Form 6A (2 September 2020) Coronavirus Act 2020 (Residential Assured Tenancies and Agricultural Occupancies Tenancies: Protection from Eviction) (Forms) (England) (Amendment) and Suspension (Amendment) (England) Regulations (Coronavirus) Regulations 2020 2020, reg. 3(7)

Form 6A - 26 March to 31 August 2020 Schedule 29 Coronavirus Act 2020, para. 12 : “(2) The Schedule to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (S.I. 2015/620) is to be read … as if in Form 6A …— (a) in the section headed "What to do if this notice is served on you", in the second paragraph — (i ) for "two months'" there were substituted "three months’”….” New Form 6A posted on 26 March 2020 (https://www.gov.uk/guidance/assured-tenancy-forms#form-6a)

Notices – section 8 Housing Act t 1988 Date the notice was served Notice period Form 24 March 2020 or before 0 - 2 months Form 3 (6 April 2015) Section 8 Housing Act 1998 Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 25 March - 28 August 2020 3 months Form 3 (26 March 2020) Para. 6 of Sch. 29 Coronavirus Act 2020 Para. 12(1) of Sch.29 29 August – 31 March 2021 0 - 1 month for Grounds 7A, 14 Form 3 (29 August 2020) 0 - 6 months: “the relevant notice period” Reg. 2 and 3(11)(b) Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, regs. 2(c) and 3(6)

Section 8 notices - 29 August 2020 onwards Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, reg. 2 “The following paragraphs of Schedule 29 are suspended in relation to England — … (c) paragraph 6(a) and (b) (modification of section 8(3A) and (4) of the Housing Act 1988 notice of possession proceedings on Ground 7A and 14 in relation to assured tenancies)…”

Notices – section 8 Housing Act t 1988 Date the notice was served Notice period Form 24 March 2020 or before 0 - 2 months Form 3 (6 April 2015) Section 8 Housing Act 1998 Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 25 March - 28 August 2020 3 months Form 3 (26 March 2020) Para. 6 of Sch. 29 Coronavirus Act 2020 Para. 12(1) of Sch.29 29 August – 31 March 2021 0 - 1 month for Grounds 7A, 14 Form 3 (29 August 2020) 0 - 6 months: “the relevant notice period” Reg. 2 and 3(11)(b) Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020, regs. 2(c) and 3(6)

Summary: notice periods 29 August – 31 March 2021 Notice period Ground for possession 0 – 3 months (~ as before) Antisocial behaviour, inc. mandatory grounds Rioting, domestic abuse, false statements, death of tenant, no right to rent 4 weeks Rent arrears < 6 months 6 months All other grounds

Pre-action protocol - social landlords “1.5 Courts should take into account whether this protocol has been followed when considering what orders to make. Social landlords should also comply with guidance issued from time to time by the Regulator of Social Housing, the Ministry for Housing, Communities and Local Government and, in Wales, the Welsh Ministers.” Part 2 – rent claims: “2.14 If the landlord unreasonably fails to comply with the terms of this protocol, the court may make one or more of the following orders – (a) an order for costs; (b) an order adjourning the claim; or (c) an order striking out or dismissing the claim (other than a claim based on a mandatory ground).”

Really? Compare CPR r. 3.1: “(4) Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol. (5) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre- action protocol.” With r. 3.4: “(2) The court may strike out(GL) a statement of case if it appears to the court — (c) that there has been a failure to comply with a rule, practice direction or court order.”