Terminating an Assured Shorthold Tenancy and The Stay on Possession Proceedings

The Coronavirus Act 2020 came into force on 26 March 2020 and introduced a raft of measures designed to protect those made more vulnerable by the economic fallout from the pandemic.

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Terminating an Assured Shorthold Tenancy and The Stay on Possession Proceedings

The Coronavirus Act 2020 came into force on 26 March 2020 and introduced a raft of measures designed to protect those made more vulnerable by the economic fallout from the pandemic. Ranking fairly high on that list was residential tenants.

With the aim of protecting residential tenants from eviction, the period of notice to be given by landlords before commencing possession proceedings for certain residential tenancies was first extended to three months. Those changes were initially intended to apply for a ‘relevant period’ between 26 March 2020 and 30 September 2020. This period has recently been extended until 31 March, however.

Notices

A landlord may apply to the court for a possession order against a tenant who has an assured shorthold tenancy (AST) using a Section 21 or Section 8 Housing Act 1988 notice, or both.

A Section 21 notice is used to evict a tenant either after a fixed term tenancy under a written agreement ends or during a tenancy with no fixed end date – known as a ‘periodic’ tenancy.

The Section 8 route is used usually where the tenant has defaulted on the terms of their AST, most commonly if they are in arrears, but such a notice may be served where any of the statutory grounds at Schedule 2 of the Housing Act 1988 are engaged.

The Coronavirus Act contained powers for the further extension of notice periods to a six month maximum through further regulations made by relevant national authorities. England has now introduced further regulations under these provisions which took effect on 29 August 2020.

The effect of these changes, in summary, is that landlords must now give six months’ notice under Section 21 before commencing possession proceedings whereas the period of validity of the notice was extended ten months (previously six) from the date on which the notice was given.

Similarly, the period of notice to be given by way of a Section 8 notice has generally also been increased to six months before possession proceedings can be brought, save for several important exceptions where the following shorter notice periods will apply:

  1. Four weeks, where at least six months’ rent is unpaid at the time the notice is served.
  2. Three months, where the grounds for eviction relate to the tenant’s immigration status or the tenancy is an assured tenancy or AST and possession is sought following the death of the former tenant.
  3. Immediately after service of the notice where the landlord relies on ground 14 (nuisance, annoyance, illegal or immoral user).
  4. Two weeks where the landlord relies on grounds 14A (domestic violence where the landlord is a social or charitable housing landlord), 14ZA (riot conviction) or 17 (landlord induced to grant tenancy by false statement).
  5. Four weeks/one month if the landlord relies on ground 7A (certain criminal convictions, and breaches of injunctions or closure orders under the Anti-social Behaviour, Crime and Policing Act 2014).

Procedure

Landlords must also have regard for the procedural changes introduced through a new practice direction as part of the Civil Procedure Rules (CPR).

Practice Direction 51Z first imposed a stay on most proceedings for possession brought under CPR 55 and proceedings seeking to enforce an order for possession by a warrant, until 25 June 2020. The stay was then extended from 25 June 2020 until 23 August 2020 and subsequently extended again at the eleventh hour until 20 September 2020.

All landlords whose possession proceedings were stayed will be required to file and serve a “reactivation notice” confirming that they wish the case to be listed, relisted, heard or referred. Further, when the stay is lifted, all new possession proceedings brought by landlords will require them to:

(a) bring to the hearing two copies of a notice

  1. in a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that they have complied with that Pre-Action Protocol and detailing how they have done so; and
  2. in all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the tenant and their dependents; and

(b)  serve on the tenant not less than 14 days prior to the hearing the notices referred to above.

As the end of the stay approaches (subject to any further extensions which may be implemented) many landlords that chose to serve notice during the period from 26 March will need to concern themselves with additional requirements as well as navigating new procedural steps. It is of particular importance that landlords have served notice in the correct prescribed form, as failing to do so, or simply giving insufficient notice, remain common pitfalls that will render any notice invalid and any subsequent proceedings brought in reliance on such a notice will inevitably be a significant waste of time and costs.

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