War and Peace – a landlord’s dilemma – the latest on evictions

23 September 2020

 

With changes to the rules governing evictions continuing to come thick and fast, and the courts resuming possession claims as of Monday 21 September, there is no better time to bring you a complete overview of the current state of play with evictions. Gurdip Chana, Advisor at specialist lettings helpline, HF Assist, provides everything you need to know to help you inform your landlord of their options.

 

Where to start

Before considering serving an eviction notice, landlords are expected to make ‘efforts to reach compromise’ with their tenants. In practice, this involves communicating with the tenants with a view to reaching an out-of-court settlement in relation to issues faced.

 

As an example, if the tenants owe rent arrears, the landlord should consider offering help and support. This can include:

• Assisting with an application for Universal Credit or Housing Benefit
• Being willing to offer a temporary discount on rent or accept deferred payments
• Offering an affordable rent repayment plan/agreement to repay arrears
• Giving the tenant an incentive to vacate the property voluntarily (for example accepting a reduced amount of arrears, or offering a rent free period, if the tenant commits to leaving the property on an agreed date)

 

Landlords should retain all evidence (e.g. letters, emails, text messages, call records, etc.) to be able to demonstrate compliance with this requirement. This evidence may be required later, if they need to apply to court to obtain possession (more on this below).

 

As an alternative, if tenants are unwilling to negotiate directly, landlords should consider using mediation as a way forward. Mediators are qualified, independent, and impartial and their aim is to find the middle ground between both parties. The Property Redress Scheme offers its own mediation service – you can find out more here.

 

We find mediation is an effective way for tenants to come forward to address concerns, particularly where they are reluctant to communicate or are afraid to face the consequences. Mediators handle all communications with complete confidentiality and approach the matter in a non-biased manner. In our experience, tenants are often more willing to open up to the mediator, making it easier to get the conversation going.

 

Of course, not all tenants will be willing to talk. If this is the case, by attempting to mediate, you can show the court you have done all that you can to try and reach agreement, and therefore have no choice but to seek possession by serving notice, and in turn, initiating court proceedings.

 

Serving notice

The first step required to evict tenants is to serve a formal legal notice.

 

The usual advice still remains in relation to the type of notice you should look to serve when aiming to recover possession. However, landlords should be aware of changes introduced on 29 August 2020 in relation to prescribed notice periods – more details below.

 

Some landlords may be reluctant to serve notice as they might retain hope of a turnaround in events. However, if the tenant is evasive and with extended notice periods now required, landlords should firstly protect their own position and then afford the tenant time to come forward to resolve issues.

 

Serving notice is certainly not the end of the road and, once served, a landlord should continue to aim for resolution to avoid lengthy court proceedings. And again, importantly, to demonstrate they have exhausted all attempts to reach a compromise with the tenants.

 

Serving notice could also be a way to ‘nudge’ a reluctant tenant into vacating the property or rectifying tenancy breaches. Until such point as a notice is served, a landlord will remain in a state of uncertainty. Notice can help focus the minds of both the landlord and tenant – simply because the tenant will know the landlord is now just a step away from commencing legal action, and a landlord can be at peace they have overcome the initial hurdle to reclaiming possession, with the groundwork laid for the road ahead.

 

Which notice to use, and changes introduced

Section 21: this type of notice is considered a ‘no fault’ notice and a non-contentious way of recovering possession. What this means is that a landlord is not required to provide a reason for seeking possession and so long as a court is satisfied all formalities are met, it will make a possession order.

 

Due to Section 21 claims not involving a claim for money or damages, tenants have far fewer defences available to them and are therefore unable to place ‘barriers’ in the landlord’s path to recover possession.

 

All Section 21 notices served from 29 August 2020 onwards require a landlord to provide six months’ notice before being able to commence legal proceedings. Unfortunately, there are no exceptions to this rule; even if, for example, the tenant owes substantial arrears or there are unlawful activities taking place at the property.

 

Do remember

• A Section 21 notice cannot be served during the first four months of the fixed term of a tenancy
• The ‘use it or lose it’ period of a Section 21 has been increased from six to 10 months from the date of service (meaning a landlord can commence legal proceedings within a further four months after the six months’ notice has expired)
• If this ‘use it or lose it’ period has passed, a landlord will have to re-serve a Section 21 notice – making it all the more important for landlords to take early decisions on taking action and avoid accepting any delays on the tenant’s part.

 

Section 8: Typically used where there is a breach of the terms of the tenancy, there are various grounds for possession – some are considered mandatory (i.e. if proven, the court will have no choice but to grant possession) and others discretionary (i.e. it is up to the court whether or not to grant possession based on evidence presented).

 

Usually, this notice is relied upon where a Section 21 notice cannot be used – for example where there are issues with de-regulation compliance or if still within the fixed term of a long-term tenancy with no break clause.

 

Unlike Section 21 notices, there are different notice periods applicable relative to the grounds for possession being relied upon. Based on the most common grounds used under Section 8, the following notice periods apply from 29 August 2020 onwards:

• Ground 7A (tenant convicted of serious offence, anti-social activities or noise and nuisance) – one month notice required
• Ground 8 (rent arrears) – four weeks’ notice required if arrears more than six months OR six months’ notice required if arrears less than six months
• Ground 10 (unpaid rent) – four weeks’ notice required if arrears more than six months OR six months’ notice required if arrears less than six months
• Ground 11 (late payment of rent) – four weeks’ notice required if arrears more than six months OR six months’ notice required if arrears less than six months
• Ground 14 (noise & nuisance) – no notice required
• Ground 14A (domestic violence) – two weeks’ notice required​

 

For a list of changes to Section 8 grounds and their notice periods click here for further details.

 

The saving grace here is that cases involving substantial arrears, anti-social behaviour, domestic violence or noise/nuisance do not require lengthy notice. Landlords facing these difficulties will be able to commence legal proceedings sooner.

 

Do remember:

• A Section 8 notice is commonly used where tenants owe at least two months’ rent arrears, are behaving anti-socially, or there are other ‘serious’ breaches of the tenancy
• We only recommend using a Section 8 notice if a Section 21 cannot be served at all. Because landlords need to show much more evidence to justify Section 8 claims, and because there are more defences available to tenants, claims can be far from straightforward
• As a result, it might cost more time and money to recover possession via Section 8 compared to Section 21 – a landlord’s priority should always be to recover possession and to subsequently deal with the ‘fall-out’. Rent arrears or damages can be pursued later by tracing the tenant’s new address and pursuing a separate claim.
• Landlords should also remember that the ‘use it or lose it’ period for Section 8 notices continues to remain as 12 months from the date of service – legal action must commence within this timeframe.

 

Initiating court proceedings

Where the tenants fail to vacate or come forward to rectify tenancy breaches, the next step will be to consider applying to court to obtain possession.

 

The Government first introduced a suspension on all possession claims on 27 March 2020. With the suspension finally being lifted on 21 September 2020 there is a large backlog of cases for the courts to process. This means landlords should be prepared to expect significant delays when applying to court.

 

There are nevertheless some exceptions to this rule and certain cases will be considered for priority listing as follows:

• Claims issued before the introduction of the suspension on 27 March 2020
• Allegations of anti-social behaviour
• Extreme rent arrears – where the tenant owes either 12 months arrears or nine months’ arrears where the rent for the property amounts to at least 25 per cent of the landlord’s total annual income from any source
• Squatters, illegal occupiers, or persons unknown
• Domestic violence
• Fraud or deception
• Unlawful sub-letting
• Abandonment of property, non-occupation, or death of tenant.​

 

Where a claim was submitted to court before 3 August 2020 a landlord will be required to submit a reactivation notice to the court (and a copy to the tenant) to re-start the claim. A template for the reactivation notice is available here. If a reactivation notice is not submitted to court by 29 January 2021, the claim will continue to remain suspended with no further action being taken by the court.

 

Where the court had already issued a final possession order or for claims submitted to court after 3 August 2020, landlords are not required to submit a reactivation notice. Landlords should expect to hear from the court as to when their claim will progress. Or, where a final possession order is issued, to proceed with applying for a bailiff to evict the tenants or simply await confirmation of when the eviction will take place if already applied for.

 

Do remember: regardless of when the case was first submitted to court, landlords are also expected to provide the court with information on the effect of COVID-19 on the tenants and their dependents. For example, if the tenant has lost their job, is unable to work due to ill health, is shielding, or there are problems with benefits claims, etc. Failure to provide this information will result in delays as the court has the power to adjourn the case until this information is supplied.

 

Landlords can also provide information to the court if they are facing hardship because of the COVID-19 outbreak. The case will be COVID-19 marked and this is something for the court to bear in mind when dealing with the claim. This request can be made in a letter to be sent to the court and the tenant by post or email. In this letter, the landlord will be required to provide the following information:

• Brief details of the hardships they have faced (or will face in future)
• Whether they are receiving assistance under a COVID-19 scheme or needing to increase borrowing in respect of the property.

 

The Government has published up-to-date guidance for landlords dealing with possession claims and tenant disputes in general.

 

Carrying out eviction/enforcement

Landlords in receipt of a final possession order can proceed with evicting their tenants; if again, the tenant fails to vacate or come forward to rectify tenancy breaches.

 

There are no special procedures to follow when applying for a bailiff and upon receipt of the application, the court will write to both the landlord and tenant advising when the eviction is due to take place.

 

To avoid delays, when applying, landlords should complete and submit a bailiff risk assessment form giving details of the tenancy and information of what the bailiff can expect at the property – click here for a template.

 

Unfortunately, due to COVID-19, the court will provide information to the tenant as to how to set-aside an existing possession order if there are strong justifications for preventing an eviction. This could in practice mean further delays for the landlord.

 

Furthermore, there will be a large backlog of appointments for bailiffs to process. This means, landlords can expect further delays. However, by submitting the application sooner, landlords will be able to ‘join the queue’ sooner and in turn be able to evict their tenants without additional delays.

 

Conclusion

Whilst it might appear that there are several obstacles facing landlords when attempting to recover possession, they should nevertheless persist with following the above steps to avoid potential delays.

 

The court system is overwhelmed and there is no easy fix to this problem. This is the reason why landlords are encouraged to engage with their tenants every step of the way, with a view to reaching compromise. There is no understating the importance of making attempts to resolve issues without court intervention.

 

By being proactive and engaging, landlords will stand a better chance of successfully evicting problem tenants. We strongly advise landlords to follow the steps above both before and after commencing legal proceedings to stand the best possible chance of achieving their aim of recovering possession.

 

If you find you are unsure and require assistance in helping your landlord clients deal with a possession matter, the advisors here at HF Assist can help. To find out more about HF Assist visit hfassist.co.uk.