To evict or not to evict?

Thu, 26 Mar 2020

There is an update to this article here

In the past couple of weeks Coronavirus has hit the UK full force resulting in what many feel is an unprecedented level of government intervention and support in response.  The death rate is climbing, jobs have been lost and, since Monday evening this week, our movements have been significantly restricted.  It is unsurprising that in amongst fear for the health and safety of ourselves and our loved ones, the thoughts of many will have turned to their security of tenure in their homes to which they are, by and large, presently confined.

The government’s expressed intention

On 18th March 2020 the government issued a press release titled “Complete ban on evictions and additional protection for renters” which promised a “radical package of measures to protect renters and landlords affected by coronavirus”.  It suggested that “as a result, no renter in either social or private accommodation will be forced out of their home during this difficult time”.  A bold promise.

As to how this would happen, the press release continued by stating that “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period. As a result of these measures, no renters in private or social accommodation needs to be concerned about the threat of eviction”.  Furthermore, the government confirmed that “the three month mortgage payment holiday announced yesterday will be extended to landlords whose tenants are experiencing financial difficulties due to coronavirus” so as to “alleviate the pressure on landlords, who will be concerned about meeting mortgage payments themselves, and will mean no unnecessary pressure is put on their tenants as a result”.

Sounds good.  Reasonably, though the press release mentioned that landlords would not be able to “start proceedings to evict” for at least a three-month period, the reassurance that “no renter in either social or private accommodation will be forced out of their home during this difficult time” led many to interpret the government’s announcement as a promise that no one would be evicted during this period.  To allow the continuation of proceedings which have already begun would potentially result in social or private renters being evicted, and that would go against the suggestion that “no renter” would find themselves in such a position, right?

The Coronavirus Act 2020

We all waited and eventually noticed that the government had included a number of measures within The Coronavirus Bill, dealing with protection from eviction for residential tenancies.  At the time of first writing this article, the Bill was due to reach committee stage.  It has now been enacted following royal assent and a copy can be found here: http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted/data.htm.

In short, section 81 reads: “81 Residential tenancies in England and Wales: protection from eviction Schedule 29 makes provision about notice periods in relation to possession proceedings in respect of certain residential tenancies etc”.  When one then looks to Schedule 29, they will find a series of amendments which essentially extend the usual notice period to 3 months in respect of the following notices:

  • Section 5(1) of the Protection from Eviction Act 1977 notice to quit in relation to a protected tenancy for the purposes of the Rent Act 1977;
  • Section 83 of the Housing Act 1985 notice in respect of a dwelling-house let under a secure tenancy;
  • Section 83ZA of the Housing Act 1985 notice in relation to proceedings for possession on absolute ground for anti-social behaviour;
  • Section 107D of the Housing Act 1985 notice with regard to recovery of possession on expiry of a flexible tenancy;
  • Section 8 of the Housing Act 1988 notice of proceedings for possession in relation to assured tenancies;
  • Section 21 of the Housing Act 1988 notice in respect of assured shorthold tenancies;
  • Section 128 of the Housing Act 1996 notice of proceedings for possession of a dwelling-house let under an introductory tenancy; and
  • Section 143E of the Housing Act 1996 notice of proceedings for possession of a dwelling-house let under a demoted tenancy.

Consequentially, modifications to a number of the prescribed forms are also detailed within the Act.  Furthermore, paragraph 13 to schedule 29 provides a power to alter the three-month notice periods by way of regulations up to six months.

Falling Short

Is this the “complete ban on evictions” we had been promised?  No.  Does it mean that “no renter in either social or private accommodation will be forced out of their home during this difficult time”.  No again.

Put bluntly, it falls so far short of achieving either of those things that it is no wonder people have been left scratching their heads. First, the extension does not apply to all tenancies.  For example, there is no mention of assured agricultural tenancies, which I deal with in my own practice, nor is there any mention of licenses or contractual tenancies the likes of which many vulnerable people may be housed under – the volumes of homeless people in temporary accommodation spring to mind in particular given recent reports of homeless residents housed by Councils being asked to leave a hotel[1].  Second, it does not deal with rent arrears which contrasts starkly with the government’s confirmation that mortgage payment holidays will apply to landlords.  Third, it would not preclude the continuation of proceedings which have already commenced nor, seemingly, the start of proceedings where a notice has already been validly served.

On 24th March 2020 the Ministry of Housing, Communities and Local Government tweeted the following:

“1/5 Following misleading information on our commitment to renters and landlords – we want to be clear that the emergency legislation means there can be no evictions as a result of #coronavirus for 3 months – and we’ve taken the power to extend if necessary #covid19

2/5 As soon as legislation is passed, a three month relief of any eviction proceedings starting will begin to protect renters at this difficult time #coronavirus #covid19

3/5 Clear guidance has been given to judges and bailiffs, meaning that it is highly unlikely that any possession proceedings will continue during this period.  If there is evidence that this is not the case, we have the power to review accordingly.

4/5 These emergency measures, together with the overall support package, will ensure tenants are safe in their homes and landlords are protected from unmanageable debts.

5/5 We have announced almost £1bn of support for renters, increased housing benefit and Universal Credit #coronavirus #covid1”

However, this repeats the suggestion that “there can be no evictions” for a 3-month period which is not what the legislation says.  It does not fully address what will happen to proceedings which have already been implemented.  It is not clear whether or not the “clear guidance” given to judges and bailiffs will mean that there will be no continuation of possession proceedings, or if we will get to see said guidance so as to know what we are working with.

What Now?

Unless and until further legislation is enacted to bridge the gap, section 81 of the Coronavirus Act 2020 is as far as the government has gone to make good on its intention to protect tenants.  Many tenants will remain in a precarious position and the courts will be tasked with making decisions as best it reasonably can as to what to do during the current outbreak.  The MHCLG’s suggestion that it has given out guidance which means it is unlikely that possession proceedings will continue during this period is interesting.  It remains to be seen if we will get to see such guidance and how it will play out in practice in the courts.  In any event, landlords will no doubt want to think very carefully about what is proportionate in all of the circumstances, particularly where they are subject to Equality Act 2010 and Human Rights Act 1998 considerations.

Please do not hesitate to contact me at [email protected] or  the Business and Property team at [email protected] if you have any possession issues that you need to discuss.

[1] https://www.theguardian.com/world/2020/mar/25/homeless-travelodge-residents-turned-out-on-to-street-coronavirus

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