10th September 2020
We’re all talking about a ‘new normal’ with COVID-19, hoping we can settle into a new way of working and socialising. Just as I get used to one set of rules and regulations to keep everyone safe (family, friends, work colleagues and customers) the rules change again, and my idea of what may be the ‘normal’ transforms itself yet again. Not only am I struggling to keep up with the social distancing rules, but at Moores we’re having to keep up with the Government’s changes to tenancies, especially with notices to quit.
Prior to the covid problem, a Section 21 notice to end a fixed term tenancy on the end date, or any date thereafter for a periodic tenancy, was 2 months. From 26th March the Coronavirus Act 2020 extended the 2 months to 3 months. If you’d served notice on the 25th March you were fine with 2 months. But a day later, and you’d have to have served the 3 months notice. Serving 2 months on 26th March or later would be fatal to the notice.
Bearing in mind the courts shut down in March, whether you had served notice on the 25th or the 26th would be arbitrary; if the tenants failed to vacate you wouldn’t be getting a court hearing any time soon.
The rules have changed again since March. From the 29th August the Section 21 notice period was extended again. This time from 3 months to 6 months. If you serve notice now to obtain possession you won’t be able to legally expect vacant possession until March 2021. Of course, if your tenant moves out voluntarily, all well and good. But be very careful you are certain the tenants have left. Don’t assume they’ve brought the tenancy to an end simply because they’re no longer residing in the property. They need to hand the keys back. If you affect access before having the tenancy ended you will breach the Protection from Eviction Act 1977.
The problem with obtaining vacant possession with a Section 21 notice doesn’t end with the 6 month notice period however. Section 21 (D) of the Housing Act 1988 has also been amended, extending the time period in which a landlord can apply to court after the service of 6 months notice from 6 months to 10 months! Assuming you serve notice on the tenant on 1st October 2020, the tenant has the right to stay in the property until 31st March 2021. If the tenant fails to move out on the 31st March the landlord still cannot apply to court until 31st July 2021. When you’ll get a court date will depend upon how busy the courts are following which a possession order may necessitate bailiffs.
These extensions clearly present some problems for anyone wanting their home back to live in, or for anyone wanting to sell a property with vacant possession. With such a long period of uncertainty, anyone wanting to sell a tenanted property with vacant possession on completion needs to plan ahead well in advance!
There are few exceptions to the 6 months’ notice. Anti-social behaviour, domestic abuse, rent arrears and immigration status qualify for shorter notice periods. The two former matters are difficult to prove. Rent arrears and immigration status are easier to establish.
For rent arrears, the rent needs to be in arrears for at least 6 months. Once the arrears amount to this level, you can serve 4 weeks notice. What is uncertain is how long it will take to get a hearing date with the backlog of court cases following the courts being closed during lockdown. Where a tenant fails a Right to Rent check, the notice period is 3 months.
Serving the correct notice period is obviously crucial, as any error will result in a court application being rejected. To add to the complication, from the 2nd September the landlord must now use the updated Form 6A. Using the old form will result in the notice failing.
For the majority of buy-to-let landlords using capable managing agents, adaptions can be made and managed. For those landlords who are self-managing their rental property and only using agents for a let-only service, and the reluctant landlords who have been forced into renting, the new time frame extensions will prove yet another anxiety on top of Covid-19.
If we can be of help please get in touch.