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COVID-19 and social landlords: updated

Angela Hall, Elizabeth England and Tristan Salter provide an update for social landlords on the changes taking place as a response to the pandemic.

This is the first in a series of on-going briefings aimed to provide the latest information for social landlords as to the changes taking place. We aim to provide as up-to-date information as possible in a rapidly developing situation. [UPDATED: 11 am, 30 March]

This update covers the most recent information on the following:

  • Possession Proceedings
  • Gas Safety
  • Repairs: access and inspection

Possession of property

The Coronavirus Act 2020 was given Royal Asset late on 25 March 2020. By Schedule 29 to the Act, the required notice period to be given to tenants during the COVID-19 emergency period is extended to three months. These provisions apply from 26 March 2020. Accordingly, if a landlord intends to serve a notice of seeking possession from today and during the emergency period, it should ensure that it meets the requirements set out below.

3 months’ notice to be given to tenants

The changes are expressed in the Act to “be read as” amendments, but are not in fact amendments to the various Rent Act and Housing Acts. The prescribed forms of Notice are to be read as having been amended without the need for housing providers to change their forms, but it is advisable to highlight to tenants in a covering letter that various words are ‘to be read’ as per the changes set out in the Act in the period during which its provisions are going to be relevant.

The provisions set out in the Schedule to the Act are envisaged to be in place until 30 September 2020 (defined as the ‘relevant period’), with the power for further statutory instrument to extend the time period if required.

In broad terms, the provisions require the following;

  • • During the relevant period, 3 months’ notice must be given to all tenants of tenancies set out in the Schedule before proceedings can be commenced – including in circumstances of anti-social behaviour (ASB) - whether on a discretionary or mandatory Ground
  • The prescribed forms of Notice need to be amended to give tenants guidance on the effect of these changes

The provisions do not extend to;

  • Licences
  • Contractual tenancies
  • Tenancies granted in the course of employment

Existing Notices

Many landlords will have served a Notice which has either already expired or will expire in the coming weeks.

The amendments to the statutes below apply from the date of commencement of the Coronavirus Act 2020. Notices served prior to the commencement of the Act will be valid, with one caveat (in respect of statutory Rent Act tenants, as to which, see below). Nothing in the Act prevents the court from dispensing with the statutory requirement of serving a Notice where it is just and equitable to do so under the existing legislation.

The government has updated its Prescribed Notices for Assured, Assured Shorthold and Secure Tenancies. The new Prescribed Forms can be found at;

https://www.gov.uk/guidance/assured-tenancy-forms
https://www.gov.uk/guidance/secure-tenancy-forms

The provisions in summary

Tenancy to which provisions relate

Existing legislation which is subject to amendment

New provisions in the Schedule: Residential Tenancies Protection from Eviction

Secure Tenancies

Housing Act 1985

s.83

Secure Tenancies (Notices) Regulations 1987 (S.I 1987/755)

s.83(3) is omitted. This applies where a landlord relies on Ground 2 of Schedule 2 – ASB provisions, to give immediate notice that a claim for possession may be commenced. There is now no immediate notice provision even in circumstances of ASB, rather, s.83(4) applies, such that 3 months’ notice must be given.

s.83ZA is also amended to apply a 3 month notice period to the absolute ground for possession based on ASB.

There is a new s.83(4B) providing that all notices must give at least 3 months’ notice to the tenant

The s.83 prescribed form is to be read as amended in accordance with paragraph 10 of the Schedule

Flexible Tenancies

Housing Act 1985

s.107D

s.107D(4) is now to be read as giving the tenant 3 months’ notice

Assured Tenancies

Housing Act 1988

s.8

Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (S.I. 1997/194)

s.8(3A) now provides that 3 months’ notice must be given to the tenant, including for the purpose of;

s.8(4), (4A) and 4(B)

The s.8 Notice on Form 3 is read as amended to give effect to paragraphs 11 and 12 of the Schedule

Assured Shorthold Tenancies

Housing Act 1988

s.21

Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (S.I. 1997/194)

s.21 notices must give the tenant 3 months’ notice, including for the purpose of

s.21(1)(b), 21(4)(a) and 21(4E)(b)

The standard form of Notice is amended to give effect to paragraphs 11 and 12 of the Schedule

Introductory Tenancies

Housing Act 1996

s.128

s.128(4A) Notices must now give 3 months’ notice

Demoted Tenancies

Housing Act 1996

s.143E

s.143E(3) Notices must now give 3 months’ notice

Protected and Statutory Tenancies

Protection from Eviction Act 1977 s.5(1) (validity of notices to quit)

Giving 4 weeks’ notice to quit

Rent Act 1977 s.3(4)

The period of Notice is extended to 3 months (para 2(1))

A new s.3(4C) is inserted setting out the requirements for the Notice to be valid. 

A new s.3(4D) requires the Notice to be served at the dwelling to which it relates

A new s.3(4E) provides that special conditions apply to Grounds mentioned in Schedule 15 and 16

A new s.3(4A) provides that proceedings for possession cannot be commenced during the ‘relevant period’ – currently 30 September 2020 unless:

(a)   The landlord has served the relevant statutory notice, which is at least 3 months’ notice, and

(b)   The proceedings are commenced after 30 September 2020 (or later date if this is amended)

s.3(4B) provides a caveat: the proceedings can be commenced without compliance with s.3(4A) if “the court considers it just and equitable to dispense with the requirement to comply”

Pre-Action Protocol for Rent Arrears

We are to expect a new Pre-Action Protocol for Rent Arrears which will address the issue of what landlords and tenants are expected to do in advance of a claim related to difficulties encountered directly as a result of COVID-19. This is not contained in the Act.

There is also a guidance note expected to accompany the amended Pre-Action Protocol in due course.

In the meantime, landlords are best advised to consider whether coronavirus has been a factor in the tenant falling into arrears and discuss with the tenant their entitlement to benefits and any other support which may be available. Some helpful guidance has already been published at:     

https://www.moneyadviceservice.org.uk/en/articles/coronavirus-what-it-means-for-you.

Existing claims

The court has now provided guidance on the status of existing claims in the form of the new Practice Direction 51Z. The PD is effective immediately from 27th March 2020.

The main changes effected by this PD are:

  • All proceedings for housing possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 27th March 2020.
  • Claims for injunctive relief are not subject to the stay set out in paragraph 2 of the PD.
  • The PD ceases to have effect on 30th October 2020.

The PD can be found at:

https://www.judiciary.uk/wp-content/uploads/2020/03/PD-Possession-Final-cleared-SIGNED.pdf

Gas safety

The Gas Safety (Installation and Use) Regulations 1998 set out the duties of all landlords to make sure that all gas appliances, fittings, chimneys and flues are safe and working efficiently.

Gas safety checks need to be carried out annually and both the landlord and tenant need to have a current CP12 safety certificate issued by a registered engineer. There has not been any suspension of the requirement for the gas safety certificate to be issued and gas safety engineers continue to carry out their work.

If landlords anticipate difficulties in gaining access as the COVID-19 situation progresses, they have the flexibility to carry out annual gas safety checks two months before the deadline date. Landlords can have the annual gas safety checks at their properties carried out any time from 10 to 12 calendar 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.

Landlords are encouraged to arrange annual gas safety checks as early as possible, as a contingency against tenants being in self-isolation for a period of 14-days (in line with current guidelines), or gas engineers being unavailable due to illness. The two-month period to carry out annual gas safety checks should provide adequate resilience in most situations.

In the event that a landlord is unable to gain access to the property, e.g. persistent refusal of access due to vulnerable tenants self-isolating, the landlord will be expected to be able to demonstrate that it took reasonable steps to comply with the law. This will need to include records of communication with the tenant and details of the landlord’s engineers’ attempts to gain access.

The Gas Safety (Installation and Use) Regulations do not give landlords the power to ‘force disconnection’ of the gas supply in circumstances where tenants have not facilitated access. Landlords are encouraged to seek legal advice if there are such problems.

The default position for the courts is to conduct hearings remotely, either by telephone or video link with Skype being the current preferred provider.

If an application to court has to be made, the current advice is to make such an application in the usual way and the court manager will issue a notice of hearing and provide guidance on how the hearing will be dealt with.

As an additional step, it is likely to become the usual method to provide a draft of the order that you would like the court to make in .doc form by email to the court so that this can be quickly edited by the Judge and issued by the court.

Repairs: access and inspection

The position in relation to access for repairs and maintenance is unchanged. There continues to be a statutory obligation on landlords to maintain and repair property.

Landlords are advised to keep the health and safety of their staff in mind to provide them with hand sanitiser and masks where possible. The tenant should be asked to confirm that they have complied with the Public Health England guidance and are not in a 14-day self-isolation period.

However, we know of one firm of surveyors who have cancelled all future inspections at this time. This is likely to cause a significant delay to disrepair cases. A stay of all directions should be sought until such time that an inspection can be carried out. In our view, a landlord is unlikely to face damages for a period in which no inspection of the Property was possible, even if the situation was out of the control of both the landlord and the tenant.

Conclusion

The unprecedented crisis will mean a change in behaviour for social landlords. It will be vitally important that information as to contact either for payments of rent or access is recorded accurately so courts can be told an accurate history of events.

Angela Hall, Elizabeth England, Tristan Salter are barristers at Five Paper. Angela can be contacted by email, Elizabeth can be reached This email address is being protected from spambots. You need JavaScript enabled to view it. and Tristan can be reached This email address is being protected from spambots. You need JavaScript enabled to view it..

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