Residential property : How COVID-19 restrictions have affected notices seeking possession

2020 has seen an unprecedented amount of changes to the rules that govern serving notices in order to recover possession of residential property. Landlords face significant delays in recovering possession from residential tenants, starting with having to serve in most cases 6 months’ notice before issuing proceedings. As a result it has never been more important for landlords to ensure that their notices are correctly prepared and served on tenants or risk having to start again.

Key points for drafting and serving possession notices relating to residential property

To help guide you through all the changes, we have summarised the key points to remember when drafting and serving a notice for possession relating to a residential property below:

Deadlines increased to six months with few exceptions

For notices issued between 26 March and 28 August 2020, the required notice period was extended to 3 months.

From 29 August 2020 until 31 March 2021 landlords must provide 6 months’ notice save for in exceptional circumstances when serving s.8 notices which are as follows:

• Ground 7 – Death of a tenant – 3 months’ notice
• Ground 7A – Tenant convicted of a serious offence – 1 month’s notice
• Ground 7B – No right to rent due to immigration status – 3 months’ notice
• Grounds 8, 10 and 11 – Rent arrears – where at least 6 months of rent is unpaid, a minimum of 4 weeks’ notice period
• Ground 14 – Anti social behaviour/nuisance, annoyance, illegal or immoral user – proceedings can be brought immediately after notice has been served
• Ground 14A – Domestic violence where the landlord is a social or charitable housing landlord – 2 weeks’ notice
• Ground 17 – Landlord induced to grant a tenancy by false statement – 2 weeks’ notice

New precedent forms

New precedent forms have been published which you can access here:

• s.21 notice Form 6A
• s.8 notice Form A

For further information on these forms read the government’s guidance notes on evicting tenants.

Expiry Dates

From 29 August 2020, the times s.21 and s.8 notices served after that date will remain valid have been extended to:

• s.21 notices related to fixed or successive periodic replacement tenancies (where s.21(4D) applies) the deadline has been extended from 6 to 10 months from the date it is given to the tenant;
• s.21 notices related to periodic tenancies (where s.21(4E) applies) 4 months from the date specified in the notice as the date after which possession is required; and
• s.8 notices remain unchanged and continue to be valid for 12 months after they were served.

Steps to take before serving a s.21 notice

When preparing a claim for possession of residential property relying upon a s.21 notice, landlords will be asked to provide evidence to show that all the preliminary documents have been served correctly on the tenant. These include the EPC, Gas Certificate and How to Rent Leaflets.

Deposits must be secured in a government approved tenancy deposit scheme or returned to tenants before notices are served. Failing to comply with these steps will mean landlords will likely have to start again.

Landlords will also be asked to provide the court with proof of service of the notice on the tenant such as recorded receipts from the post office or video footage of the notice being personally delivered to the property. It is best to avoid having to rely on journal entries showing when posted, photocopies of envelopes or one’s own memory.

Property Litigation Team

Our Property Litigation team can help with the process as they routinely undertake the following work:

• Advise landlords which notice to serve and options available to obtain possession as quickly as possible.
• Prepare and serve any notice seeking possession.
• Check the notices served are correct and all procedures have been complied with (preferably) before but sometimes after proceedings have been issued. If there is any doubt a new notice can be served without prejudice to the first notice as a backup in case the first is unsuccessful.
• Error found in the notice – all may not be lost. It has been found that some errors such as putting the wrong year can be saved if the covering letter records the correct year. Our team can advise on whether any case law in this area applies.
• Prepare and have conduct of the possession proceedings on behalf of landlords.

For more information about our services email: propertylitigation@parissmith.co.uk.