Since our latest update, there have been yet more changes made in relation to the eviction process, notably the notice period provided to tenants within notices seeking possession.
Under the Coronavirus Act 2020, in addition to the extended stay, it now appears that any section 21 notice which has been served after 29 August 2020 must provide the tenant with a minimum of 6 months’ notice before possession proceedings can be issued. Bar a few exceptions, the same 6 months notice period will also apply for section 8 notices served after 29 August 2020. This extended notice period will apply to all notices served after 29 August 2020 up until 31 March 2021.
A new form 6A (the prescribed form for section 21 notices) and a new form 3 (the prescribed form for section 8 notices) is now available from the government website which reflects the changes made. It is imperative that landlords ensure that the new form is being used otherwise the notice/s could be deemed invalid.
Where a section 21 notice is being served, this minimum 6 month notice period will supersede any break clause within a tenancy agreement. Ordinarily, break clauses are interpreted incredible strictly (e.g. if the break clause says the notice should be served on pink paper and on a Thursday afternoon then you must do so in order for the notice to be valid). However, even if a break clause stipulates that 2 months’ notice can be given, a landlord will still need to provide the minimum 6 months. That being said, should the break clause have other provisions, such as having to expire on the last day of a rental period, landlords should be ensuring compliance with these stipulations insofar as possible.
The shelf life of section 21 notices has also been amended in light of the longer notice period. Whereas a section 21 notice previously had a lifespan of 6 months from the date it was issued, notices served after 29 August 2020 will now have a shelf life of 10 months from the date of service, effectively still allowing around 4 months from the date of expiry of the notice to issue proceedings to court.
Are there exceptions?
As for section 8 notices, the general rule here is much the same; the notice period in most cases has been extended to 6 months. However, there are certain grounds for possession under section 8 Housing Act 1988 where notice periods have reverted to pre-pandemic timescales.
Grounds 8, 10 and 11 (which relate to rent arrears) require 4 weeks’ notice for cases where the level of arrears is at least 6 months. For any notices served where the arrears are less than 6 months, the relevant notice period is 6 months.
Where possession is being sought due to serious anti-social behaviour (ground 7A) the notice period has reverted to the original 4 weeks for a periodic tenancy and 1 month for a fixed-term tenancy. In order to bring a claim to court relying on Ground 7a, the landlord will need to show sufficient evidence detailing the tenants’ serious anti-social behaviour. This evidence must be substantial and should include exhibits such as crime numbers, witness evidence and reports from the Local Authority, to name a few.
The discretionary grounds 14A, 14ZA and 17 (rioting; domestic abuse; false statement respectively) have all reverted to their original notice periods of 2 weeks notice. For ground 14 (nuisance, anti-social behaviour, illegal/immoral use of property) there is technically no notice period; court proceedings can be issued as soon as the notice has been served.
Whilst grounds 7A, 14, 14A, 14ZA and 17 all have much lesser notice periods than the extended 6 months as required by other grounds/section 21 notices, landlords should ensure that they have sufficient evidence before issuing proceedings upon the expiry of a notice citing one/a combination of these grounds. These are “discretionary grounds” and hence a landlord will have to convince a judge that awarding possession is warranted.
What should landlords be doing?
In this testing time, it is vital that landlords and agents are ensuring that the most up-to-date notices are being used to prevent the notice being deemed invalid, which could mean having to re-serve. Obviously this is far from ideal given the already lengthy notice periods now required.
It is important to note that landlords who have served notices on and prior to 29 August 2020 will still be able to rely upon them, provided that at least 3 months’ notice has been given to the tenant.
This is yet another blow to all those in the lettings sector and hopefully will be the last obstacle posed by the Coronavirus pandemic.