Nicola Davies | 15th March 2021

How Coronavirus (COVID-19) restrictions have affected residential tenancies

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Nicola Davies | 15th March 2021

How Coronavirus (COVID-19) restrictions have affected residential tenancies


The Coronavirus Act 2020 (“the Act”) came into force on 26 March 2020 substantially affecting the ability of landlords to recover possession of properties in England and Wales.

Key points for landlords and tenants on residential tenancies

We set out below the key points to note for residential landlords and tenants in relation to residential tenancies. For commercial leases please read our separate blog “Coronavirus (COVID-19) and commercial leases“.

Rent concessions

  • 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.

Exceptions

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.

Notices seeking possession

Significant changes have been made to the deadlines that you set out in both section 8 and section 21 notices that are served on tenants when landlords are seeking possession. 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 May 2021 landlords must provide 6 months’ notice save for in exceptional circumstances when serving s.8 notices such as anti social behaviour, over 6 months rent arrears or tenants providing fraudulent statements. Information about these changes can be found in our separate article “Residential property : How COVID-19 restrictions have affected notices seeking possession“.

Possession proceedings

From 21 September 2020 the courts’ stay on possession proceedings was lifted and they have been accepting and reinstating possession cases again. Due to the amount of changes that have taken place in this area we have created a separate article on this “COVID-19 – Update on recovering possession of rented property“.

Claims for injunctive relief are not subject to the stay.

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.

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.

Commentary

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. Consider virtual 360viewings if you are looking for new tenants. Follow government guidelines set out for businesses when asking contractors to undertake urgent work. Seek professional legal advice to prepare or at least check notices seeking possession to avoid further delays in having to start again if you do not comply with one of the many steps that you have to follow.

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 updated on 4 January 2021. 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 our Property Litigation team on propertylitigation@parissmith.co.uk.

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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.