Watkins Ward Group Reviews Latest landlord advice
This means that from 29 August 2020, with the exception of the most serious cases, landlords are not able to start possession proceedings unless they have given their tenants 6 months’ notice. These serious cases include those in relation to anti-social behaviour (including rioting), domestic abuse, false statement and where a tenant has accrued rent arrears to the value of over 6 months’ rent.
The stay on possession proceedings expired on 20 September 2020 and landlords will now be able to progress their possession claim through the courts. Courts will carefully prioritise the most egregious cases, such as those involving anti-social behaviour and other crimes. Longer notice periods and new court rules apply whilst the period of national restrictions is in place and apply in all local tiers when the national restrictions are lifted.
To protect against Coronavirus (COVID-19) transmission, the government has changed the law to ensure bailiffs do not to enforce evictions in England over the period of national restrictions, which are in force until the beginning of the day on 2 December, and, following the lifting of these restrictions, there will be no bailiff enforcement throughout December, and over Christmas, until 11 January 2021. This means that no eviction notices are to be served until 11 January at the earliest and, given the 14 day notice period required, no evictions are expected to be enforced until 25 January 2021 at the earliest. The only exceptions to this are the most serious circumstances: illegal occupation, false statement, anti-social behaviour, perpetrators of domestic abuse in social housing, where a property is unoccupied following the death of a tenant and extreme rent arrears equivalent to 9 months’ rent with any arrears accrued since 23 March discounted.
2. Repairs, maintenance and health and safety
The purpose of this advisory guidance is to support landlords and tenants in managing property maintenance issues as we move towards an easing of lockdown measures.
Tenants have a right to a decent, warm and safe place to live. Where safe to do so, it is in the best interests of both tenants and landlords to ensure that properties are well maintained, kept in good repair and free from hazards.
After the national restrictions have been lifted, then landlords can take steps to carry out repairs and safety inspections.
1. Rent, mortgage payments and possession proceedings
Rent and mortgage payments
1.1 As a tenant, should I stop paying rent during the pandemic?
Tenants should continue to pay rent and abide by all other terms of their tenancy agreement to the best of their ability. The government has made a strong package of financial support available to tenants, and where they can pay the rent as normal, they should do. Tenants who are unable to do so should speak to their landlord at the earliest opportunity.
In many if not most cases, the COVID-19 outbreak will not affect tenants’ ability to pay rent. If your ability to pay will be affected, it’s important to have an early conversation with your landlord. Rent levels agreed in your tenancy agreement remain legally due and you should discuss with your landlord if you are in difficulty.
1.2 What can I do about rent arrears?
Tenants should continue to pay rent and abide by all other terms of their tenancy agreement to the best of their ability. Tenants who are unable to do so should speak to their landlord at the earliest opportunity.
As part of our national effort to respond to the COVID-19 outbreak it’s important that landlords offer support and understanding to tenants who may start to see their income fluctuate.
An early conversation between landlord and tenant can help both parties to agree a plan if tenants are struggling to pay their rent. This can include reaching a temporary agreement not to seek possession action for a period of time and instead accept a lower level of rent, or agree a plan to pay off arrears at a later date. Where a landlord does choose to serve notice seeking possession for rent arrears or has done so already, the notice period and any further action may be affected by legislation lengthening the notice period (see Section 1.8).
Where appropriate, if disputes over rent or other matters persist, landlords and tenants are encouraged to consider mediation. Mediation allows an independent third-party to assist those involved to try to reach a mutually acceptable agreement to resolve their dispute, without the matter needing to go to court (see Section 1.23-1.26).
If a landlord and tenant agree a plan to pay off arrears, it is important they both stick to this plan, and that tenants talk to their landlord immediately if they are unable to do so.
We have put in place a major package of financial support to enable people to continue paying their living costs, including rental payments. This includes support for businesses to pay staff salaries through the Coronavirus Job Retention scheme and we have strengthened the welfare safety-net with a nearly £9.3 billion boost to the welfare system.
The Coronavirus Job Retention Scheme has been extended until March with employees receiving 80% of their current salary for hours not worked and further economic support announced. The Job Support Scheme, which was scheduled to come in on Sunday 1 November, has been postponed until the furlough scheme ends.
If tenants fall into financial difficulties due to a change in their employment or earnings, for example, they may qualify for Universal Credit. Property Guardian licence agreements are a valid tenancy arrangement for receiving housing costs support in Universal Credit. Students are also able to claim Universal Credit under certain circumstances. Find more information.
Local authorities can provide support for tenants to stay in their homes. If tenants are experiencing financial hardship, they may be able to access new funding; we have made £500 million available to fund households experiencing financial hardship and are determined to take action to support people in need.
For those renters who require additional support, there is an existing £180 million of government funding for Discretionary Housing Payments for councils to distribute to help people with rent payments in the private and social rented sectors.
1.3 I’m a landlord. What can I do about mortgage repayments?
The mortgage holiday will be extended, with applications open to 31 January 2021. Borrowers, including those with a Buy to Let mortgage, who have been impacted by Coronavirus and have not yet had a mortgage payment holiday will be entitled to a 6-month holiday, and those that have already started a mortgage payment holiday will be able to top up to 6 months without this being recorded on their credit file.
The Financial Conduct Authority (FCA) has been clear that for borrowers who have taken 6 months’ holiday and continue to face ongoing financial difficulties, firms should continue to provide support through tailored forbearance options. This could include granting new mortgage payment holidays. Mortgage customers in this situation should speak to their lender to discuss their options.
If a landlord is concerned about their financial situation they should discuss this with their lender.
There will be a moratorium on the enforcement of lender repossession until 31 January 2021, except for in exceptional cases (such as a borrower requesting proceeding continue).
1.4 I’m a shared owner. How does this affect me?
Most shared owners will pay both rent and a mortgage. Like other mortgage holders, shared owners who are struggling to meet their mortgage payments as a result of COVID-19 will be able to access the support outlined in section 1.3. Most shared owners will also be covered by the Coronavirus Act 2020, meaning their landlords will not be able to start possession proceedings unless they have given shared owners the required notice. There is further information about the provisions in the Coronavirus Act 2020 at section 1.8.
Shared owners should continue to meet their financial commitments where possible. The government has introduced a strong package of financial support, so where they can, shared owners should still pay the rent to their landlord and mortgage to their lender as normal. Shared owners who are unable to do so should speak to their landlord and mortgage provider at the earliest opportunity.
1.5 As a landlord, should I stop charging rent during the pandemic?
Landlords are not required to do this. Most tenants will be able to pay rent as normal and should continue to do so, as they will remain liable for the rent during this period.
There is no ‘one-size fits all’ approach, as each tenant’s circumstance is different, and some will be worse affected in terms of their ability to pay than others. It is important for landlords to be flexible and have a frank and open conversation with their tenants at the earliest opportunity, to allow both parties to agree a sensible way forward.
1.6 Is my money protected? – Tenancy Deposit Protection and Client Money Protection
The deposit protection requirements have not changed. Landlords (and agents acting on behalf of landlords) must continue to uphold all their legal obligations relating to Tenancy Deposit Protection, and the usual process to return a deposit should be followed if a tenancy ends during the pandemic.
Client Money Protection requirements have also not changed. All agents who hold money on behalf of landlords and tenants are required to comply with the legislation on Client Money Protection.
1.7 I am a landlord and I want to reduce rent for my tenant. Will this breach the deposit cap as defined by the Tenant Fees Act 2019?
If you want to offer your tenant a rent reduction, temporarily or permanently, there is no need to repay part of the deposit immediately – the deposit cap imposed by the Tenant Fees Act 2019 is linked to initial rent levels.
Notices seeking possession
1.8 Protections for tenants under the Coronavirus Act 2020 – What has changed?
The Coronavirus Act 2020 protects most tenants and secure licensees in the private and social rented sectors by putting measures in place that say that, in most cases, before starting court action landlords are required to give extended notice of intention to seek possession to their tenants. For notices issued between 26 March to 28 August 2020, the required notice period was 3 months. Notices issued during this period are unaffected by the changes outlined below.
The provisions in the Coronavirus Act 2020 have been extended meaning that from 29 August 2020, landlords must provide 6 months’ notice to their tenants in most circumstances. However, there are some serious cases where it is right that landlords are able to start progressing within a shorter timeframe. This is because of the pressures these cases place on landlords, other tenants and local communities.
These changes mean that from 29 August 2020:
For notices in relation to anti-social behaviour, domestic abuse, rioting and false statement, the required notice periods have returned to their pre-Coronavirus Act 2020 lengths. In some cases, this means that proceedings for anti-social behaviour can be brought immediately after notice has been served. Notice periods on these grounds otherwise vary, depending on the type of tenancy and ground used, between 2 weeks and 1 month.
Where at least 6 months of rent is unpaid, a minimum 4-week notice period will be required. If less than 6 months of rent is unpaid, then the notice period is 6 months.
Where a tenant has passed away or is in breach of immigration rules and does not have a right to rent a property in the United Kingdom then a minimum 3-month notice period is usually required.
Where a social tenant has an introductory or demoted tenancy (used by local authorities), for cases concerning anti-social behaviour (including rioting) and domestic abuse, a 4-week notice period will be required. Otherwise, notice periods for Introductory and Demoted Tenancies will be 6 months.
A 6-month notice period is required for all other grounds, including Section 21 notices and, as stated earlier, where accrued rent arrears are less than the value of 6 months’ rent.
At the expiry of the notice period, a landlord cannot force a tenant to leave their home without a court order. When the notice period expires, a landlord would need to take court action if the tenant was unable to move. We strongly advise landlords not to commence or continue eviction proceedings during this challenging time without a very good reason.
Where appropriate, if disputes over rent or other matters persist, landlords and tenants are encouraged to consider mediation. Mediation allows an independent third-party to assist those involved to reach a mutually acceptable agreement to resolve their dispute, without the matter needing to go to court. While early mediation may be most beneficial in helping parties come to an agreement, this can take place at any point during the possession action process. Further information on mediation is available at sections 1.23-1.26.
1. Im a landlord and I have served a Section 21 Notice on my tenants – How long is the notice valid for?
Where a landlord gives a tenant a valid Section 21 notice after 29 August 2020, the notice will now remain valid for an extended period:
10 months from the date it is given to the tenant, where Section 21(4D) applies; or
4 months from the date specified in the notice as the date after which possession is required, if Section 21(4E) applies.
Please note: The validity of Section 8 notices remains unchanged by the Coronavirus Act 2020. Section 8 notices continue to be valid for 12 months after they are served.
1.10 I have previously served my tenant with a notice and have now done so again. Which notice is valid?
If a landlord wishes to serve a new notice in order to take advantage of the new shorter notice periods required for certain serious cases, they should, where they are issuing a new notice of the same type, withdraw the first notice before they serve a new notice.
Landlords may find it helpful to seek independent legal advice regarding these matters.
1.11 My tenant wants to leave the property early. What should I do?
At the current time, we are urging everyone to show compassion and exercise flexibility as far as possible and we encourage landlords to engage constructively with their tenants. This may include allowing tenants to end the tenancy by giving less notice than allowed for in the tenancy agreement or permitting them to end the tenancy before the fixed term expires.
Technically, tenants are liable to pay the rent for the whole of the contractual notice period, or for the whole of the fixed term but, if a new tenant can be found quickly, allowing the agreement to end early need not cause you to suffer any loss.
1.12 My tenants have left the property without providing proper notice. What should I do?
If landlords believe that their tenant has left the property but has not surrendered the tenancy – by, for example, notifying them in writing and/or returning the keys – they should verify that they have left the property before taking any further action.
Landlords could do this by using any contact information which the tenant submitted at the start of the tenancy, such as contacts for rent guarantors or friends and family. If they are still unable to locate their tenant, they may wish to use a tracing agent.
The tenant has a right to the quiet enjoyment of their property and should be given 24 hours’ notice of any visit to the property. Landlords may only enter the property in the case of an emergency, and in this case only when accompanied by an independent witness who will be able to record the situation in writing.
If landlords change the locks or enter the property and have not got confirmation that their tenant has left, a court may find that they have evicted their tenant illegally.
1.13 I have a licence to occupy, am I protected by the Coronavirus Act?
This legislation only applies to tenants so will not apply to licences to occupy (other than a secure licence under the Housing Act 1985). Landlords of those on licences to occupy should follow the same guidance and work with renters who may be facing hardship as a result of the response to COVID-19.
1.14 I have lost my job which came with accommodation, and they have told me I have to move out. What rights do I have?
The Coronavirus Act 2020 requires landlords to provide an extended period of notice before bringing court action for possession of a property in the private and social rented sectors in almost all circumstances. For notices issued between 26 March to 28 August 2020, the minimum notice period was 3 months. For notices issued on or after 29 August 2020, landlords must provide 6 months’ notice in most circumstances. Please see Section 1.8 for further information about the recent extension of the provisions in the Coronavirus Act 2020.
You may be covered by this legislation depending on the type of tenancy that you hold.
If your place of employment requires you to live-in to be able to do the job, or the occupation of the accommodation is necessary for the performance of your duties, and your contract clearly states this, you are classed as a “service occupier”. This will include some teachers in boarding schools, caretakers, carers and hotel staff, for example. As you do not have a tenancy in this situation you are not covered by this emergency legislation.
If you are not a tenant and your employer wants to end your employment because you are no longer required (rather than due to misconduct) they should tell you at least one week in advance. Check your employment contract as it may set out how much notice you should be given. Your landlord will usually have to apply to the court for a possession order if you do not leave when the notice period expires.
If you have a job that offers self-contained accommodation, but it is not a requirement as part of the job and your landlord is not a local authority, you may hold a tenancy regulated by the Housing Act 1988. If so, this will be covered by the change in legislation.
If you’re living in accommodation provided by the local authority, you are an employee of the council, and your contract of employment requires you to live in the accommodation for the better performance of your duties, your tenancy is a non-secure tenancy under the Housing Act 1985. These new provisions will also not apply to you.
If your local authority employer wants to end your service tenancy because they no longer require your services, they must give you at least 4 weeks’ notice. Check your employment contract as it may set out how much notice you should be given. Your landlord will usually have to apply to the court for a possession order if you do not leave when the notice period expires.
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