The Coronavirus Act 2020 (“the Act”) is now in force temporarily altering regulations of residential tenancies in England and Wales.
Key points for landlords and tenants on residential tenancies
We set out below the key points to note for landlords and tenants in relation to residential tenancies. For commercial leases please read our separate blog.
- Tenants remain liable to pay rent as normal and should continue to pay during the pandemic. Landlords need to consider being flexible and in appropriate cases arrangements to delay rent may be prudent if the tenant does not have the ability to pay.
- The government have made available new funding for local authorities to help provide support for tenants to stay in their homes. Tenants who have lost their income should contact their local council if they need an urgent subsidy and check to see if they qualify for Universal Credit.
- Private landlords will soon have to comply with a formal pre-action protocol following specific steps to work with tenants to agree an affordable rent repayment plan if their tenants fall into arrears before being able to commence possession proceedings.
- Buy to Let mortgage lenders have agreed to offer to defer up to three months’ worth of payments until either the end of the current mortgage period or divided up across existing repayments where this is needed due to Coronavirus related hardships.
The Coronavirus Act does not apply to the following:
- Licences to occupy – when someone does not have exclusive occupation of a premises with intention to enter into a legal relationship;
- Service occupiers – where accommodation is attached to employment and they are required to live there to perform their job;
- Lodgings, holiday lets;
- Hostel and hotel accommodation;
- Accommodation for asylum seekers
All residential landlords are however being urged to follow the same guidelines and will still need to apply for a possession order.
Serving Section 8 and Section 21 notices
The government is discouraging Section 8 and Section 21 notices from being served, but have not ruled it out altogether. Instead any notice served between 27 March and the 30 September 2020 must set a deadline of at least three months before proceedings are issued.
- Eviction hearings will not be heard in courts until after the 20 September. This takes the moratorium on evictions to a total of six months.
- The stay on possession proceedings does not apply to a claim against trespassers/persons unknown.
- Claims for injunctive relief are not subject to the stay.
Once the stay expires, landlords will need to send to the court a “reactivation notice” if their claim was issued before the 3 August 2020. The case will then be relisted for a hearing or directions given. There is no prescribed form of notice but it must be in writing and contain certain prescribed information set out in paragraph 2.3 of Practice Direction 55C. If no reactivation notice is served by the 29 January 2021, the claim will automatically be stayed.
In order to help the courts with their backlog of claims the usual deadline to list a hearing within eight weeks of the claim being issued will not apply until after the 28 March 2021. Landlords should be prepared for a delay in obtaining a hearing date, although we will not know whether this will be the case until they start listing the hearings and we get the first few hearing dates through.
Repairs and moving house
Landlords’ repair obligations have not changed. Where reasonably safe to do so, tenants should allow access to the property for emergency repairs only to be carried out. Precautions should be taken so that no direct contact between parties happens during visits with tenants staying in a separate room.
Emergency repairs are those which affect the tenant’s ability to live safely and maintain mental and physical health. The government has provided the following list of examples:
- Problem with the fabric of the building e.g. a roof leaking;
- Boiler is broken leaving tenant without heating or hot water;
- Plumbing issue, meaning tenants are unable to wash or have toilet facilities;
- White goods such as fridge or washing machine are broken;
- Security-critical problem such as a broken window or external door;
- Equipment a disabled person relies on requires installation or repair.
In the event that landlords are unable to gain access to the property, e.g. tenants refusing access due to self-isolating or an engineer not being available, a record should be kept showing reasonable steps taken to try and comply with the law.
Annual Gas Safety checks can be carried out either two months before the deadline date or 10-12 months after the previous check and still retain the original deadline date as if the check had been carried out exactly 12 months after the previous check.
The government has amended the COVID-19 regulations to make clear that people who wish to move home can do so. Landlords can now let empty properties or even rooms in homes provided existing tenants are not symptomatic or self-isolating. Read the guidance notes on how viewings and house moves should be conducted click here
A tenant who has symptoms should self-isolate and follow the government guidelines, avoiding all communal areas if it is a house in multiple occupation. Nobody can be removed from their home because of the virus.
Landlords are not obliged to provide alternative accommodation for tenants if others in the property contract the virus.
Right to rent checks during COVID-19 lockdown
During the COVID-19 lockdown you do not have to meet the tenant in person. Instead you should complete the right to rent check by undertaking the following steps:
- Ask the tenant to submit a scanned copy or a photo of their original documents via email or using a mobile app.
- Arrange a video call with the tenant – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
- Record the date you made the check and mark it as “an adjusted check has been undertaken on [insert date] due to COVID-19”.
- Once the COVID-19 measures end, you will have to carry out a retrospective check within 8 weeks of the COVID-19 measures ending on tenants who started their tenancy during the lockdown period.
- Landlords should use the Landlord’s Checking Service if a prospective or existing tenant cannot provide any of the existing documents.
Read the full guidance on landlords rights to rent checks from the Home Office.
Landlords –reach out to tenants early, check they have your up to date contact information and ensure good records are kept of the attempts made to find a solution before any notice is served. Any change to the tenancy agreement terms should be recorded in a letter/email. It is likely that the above deadlines may be extended further and so it is important to bear in mind that s.21 notices are only valid for 6 months. Consider virtual 360 viewings if you are looking for new tenants. Follow government guidelines set out for businesses when asking contractors to undertake urgent work.
Tenants – using COVID-19 as a reason not to pay rent will only delay your liabilities to your landlord. Open communication early with your landlord and be prepared to support your position with documentary evidence such as bank statements or letters from employers. It is still open for landlords to apply to the county courts for money judgments for the outstanding arrears and they may further seek to increase the costs you owe them by relying upon a clause in your tenancy that allows them to recover their fees associated with having to enforce the terms of the tenancy agreement.
This article was created on the 30 March 2020 and subsequently updated on 8 June 2020 and 1 September 2020. We shall do our best to keep this note up to date but the law in this area is changing constantly and some references and details may be out of date when reading. For specific advice on your matter contact Nicola Davies in the Property Litigation team.
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Other useful links
The best source to read on how the changes are impacting the residential property sector is the government guidance notes.
- COVID-19 and renting: guidance for landlords, tenants and local authorities
- Direct tenants to Government guidance on cleanliness and hygiene for non-medical locations
- Government stay at home guidance notes where a member of the household may be infected
- Government guidance for employers and businesses set out what precautions landlords should take when sending employees if appropriate into a rented property.