When the second lockdown in England started on 5 November 2020, the impact on housing was considered both worrying and confusing for tenants and practitioners, the rapidly changing 3-tier system which resumed on 2 December 2020 has been even more so. This article covers some of the changes to housing legislation currently in force.
The important information for tenants is that the extension of notice periods for possession in most types of residential tenancy will continue. For example, s21 notices that affect many residential occupiers on Assured Shorthold Tenancies have had the notice period extended from the standard 2 months to 6 months, this will remain in force until March 2021. The extension does not apply to notice periods when landlords are seeking possession under other grounds such as some anti-social behaviour grounds, domestic abuse, rioting and false statement, and rent arrears over 6 months, so careful consideration is needed over notice periods and grounds under which possession is sought.
The stay on possession proceedings that was in place from 27 March to 20 September 2020 did not resume during the November lockdown. Court proceedings for possession can still go ahead, with some uncertainty over the extent to which courts will be offering remote hearings during this time and the effect this will have on the duty possession schemes. The extent to which the planned ‘Covid-marker’ system, requiring a landlord to give notice of the information they have on how the pandemic has affected a tenant, is also causing uncertainty regarding the extent of a landlord’s obligations and the actual impact it could have, particularly on mandatory, ‘no-fault’ proceedings such as the accelerated s21 process.
Despite possession proceedings continuing, evictions have been put on hold since the second lockdown. Firstly, the Lord Chancellor wrote to the main Bailiffs Associations to request a moratorium on evictions during the enhanced lockdown restrictions. After some comment on the dubious legality of this, the restrictions were put on a solid legal footing with the Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020. These incorporated what had originally been termed the ‘christmas truce’ during which presumably landlords and tenants and bailiffs would have engaged in a jolly game of football in no mans land before resuming their tussle over rent and property and homes in the new year. The moratorium on evictions is now enforced through the Regulations which are in place until 11 January 2021 and, given the need for a 14 day notice period, no actual evictions are expected until at least 25 January 2021.
Exceptions to the moratorium on evictions have been allowed to enforce possession for illegal occupation, false statement, anti-social behaviour, perpetrators of domestic abuse in social housing, where a property is unoccupied following the death of a tenant and extreme rent arrears equivalent to 9 months’ rent with any arrears accrued since 23 March discounted e.g. Covid-19 related arrears are not included in the 9 month calculation.
The overall picture is that perpetrators of anti-social behaviour will not necessarily be protected from eviction during the pandemic, or indeed debtors whose debts are not pandemic related, which undermines the public health concerns underpinning the legislation. As Giles Peaker comments in his nearlylegal blog:
“Quite why the proclaimed public health protection purpose of these regulations is overridden by ‘substantial arrears’ is a mystery to me, as so far the Coronavirus has not shown a tendency to shun people with rent arrears, but logical consistency is probably too much to hope for.”G Peaker ‘Finally, Lawful non-evictions’ (Nearlylegal Blog 16 November 2020) https://nearlylegal.co.uk/2020/11/finally-lawful-non-evictions/
This is before we even begin on the confusion reigning in homelessness statutory provision – is ‘everybody in’ or everybody out? Is there a continuing duty to accommodate the street homeless or did it only apply in March 2020 at the time of the ‘everybody in’ initiative to house the homeless, does it apply to those newly made street homeless during the pandemic? Those giving evidence to the MCHLG Housing Communities & Local Government Select Committee sessions on the ‘Impact of Covid-19 on homelessness and the private rented sector’ on 14 December did not seem to have a clear answer, as councils across the country apply the rules differently and a postcode lottery ensues. Councils have done some amazing work housing street homeless during the pandemic in difficult circumstances and have shown what can be achieved. Lets hope that work can continue.
Confused yet? Imagine trying to work all this out as a litigant in person or a tenant frightened of losing your home during a global pandemic with limited access to legal aid help. The law will undoubtedly change again as it’s being formulated in a piecemeal and reactive way (a criticism that can be made of housing law as whole) rather than with any strategic oversight or clarity.
Housing advisers, tenants and landlords await the new year and new rules with some trepidation.
Shelter’s website has the most comprehensive and up-to-date legal information for practical support at: https://england.shelter.org.uk/legal/housing_options/covid-19_emergency_measures.
2. A recording of this Select Committee session on 14 December 2020 can be viewed here: https://parliamentlive.tv/event/index/320be18f-9471-49ce-8e34-24b324a5d640