The eviction ban extension - How landlords should be coping

This information is current and updated to the best of our knowledge as of Wednesday 24 March 2021.

 

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The ban on evictions in England has been extended once again, this time until 31 May. This adds a further two months onto the stay on bailiff eviction that has been repeated several times, and was expected to end on 31 March.

However, there is a glimmer of hope for landlords, – the Government has assured the National Residential Landlords Association (NRLA) that restrictions will begin to “taper off” from 1 June and that these emergency measures in the rental market will be phased out in tandem with the overall roadmap out of lockdown restrictions.

The announcement means that until 31 May, landlords will need to continue to give tenants six months’ notice before they can begin a court claim to repossess their property. A landlord who gives notice of eviction on 31 May will not be able to start the claim until November in most cases.

We spoke to Landlord Action Founder and Hamilton Fraser Chief Commercial Officer, Paul Shamplina, who felt this latest extension was, unfortunately, a foregone conclusion.

Nothing surprises us anymore when it comes to further extensions – but there are some urgent practicalities that need sorting out. Judges who oversee possession hearings must pre-approve exemption orders so that the most pressing cases can proceed once the bailiff ban is over. Otherwise, landlords face significant extra delays and costs when they have to re-apply for exemptions at a later date.

 – Paul Shamplina, Landlord Action Founder and Hamilton Fraser Chief Commercial Officer

As things stand, a landlord can only gain possession if they have leave from the court or an exemption. This only applies if they have a possession order related to rent arrears (and the arrears are over six months), severe anti-social behaviour, domestic violence cases, there has been a breach of immigration rules, when false statements have been provided by the tenant or if the tenant has passed away.

Paul adds: “But even in those circumstances applications have to be made to the court and the concern that we have is that the courts are simply taking too much time.

There is some good news for landlords though. Paul hopes that landlords will be able to enforce possession orders on tenants that are more than six months in arrears, irrespective of when the arrears accrued and therefore no longer having to pre-date COVID-19.

Landlord Action are now getting possession orders which give leave to the landlord to instruct a bailiff due to either the substantial rent arrears or anti social behaviour exemptions.

An analysis of research by the NRLA shows that 840,000 private renters in England and Wales could have built rent arrears since the COVID-19 pandemic began in March.

Paul feels that this ‘rare positive news’ as he calls it, is due to the thorough campaigning of the NRLA. However, he admits to worrying about the backlog of court cases still lingering since September last year.

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The latest from the Government is that:

  • Bailiffs are now allowed to attend properties to execute a warrant of possession if it concerns trespassers, the death of a tenant, an unoccupied property and tenants involved in anti-social behaviour or, crucially, those who have built up substantial rent arrears
  • New six month notice periods to be in place until at least 31 May 2021
  • The judiciary are expected to prioritise the most serious cases – claims issued before the ban was introduced on 26 March 2020, cases involving anti-social behaviour, extreme rent arrears, domestic abuse, fraud and deception, illegal occupiers, squatters and abandoned properties, as well as historic cases where rent has not been paid for over a year

For secure tenancies:

  • Notice periods for grounds that relate to anti-social behaviour (including the grounds for nuisance/illegal or immoral use of the property), domestic abuse, riot, and fraud will return to their original notice periods, before the Coronavirus Act 2020 was introduced. This change reflects that these cases place an untenable strain on other tenants, local communities and landlords, and that it is no longer proportionate to allow them to continue without resolution
  • Notice periods for rent arrears will be amended so that if at least six months of rent is unpaid, then landlords will be able to provide four weeks’ notice. Where arrears owed are under six months, landlords will be required to provide six months’ notice

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Notice periods for Introductory Tenancies for cases relating to anti-social behaviour (including rioting) and domestic abuse will be four weeks. This is broadly in line with the proposed notice periods for cases relating to anti- social behaviour and domestic abuse.

Otherwise, notice periods for Introductory Tenancies will be six months, in line with most other grounds. This reflects that social landlords have identified anti-social behaviour as a key issue.

Notice periods for Demoted Tenancies for cases relating to anti-social behaviour (including rioting) and domestic abuse will be four weeks. This reflects the minimum notice period for possession proceedings for Demoted Tenancies under section 143E and is broadly in line with the proposed notice periods for cases relating to anti-social behaviour and domestic abuse.

Otherwise, notice periods for Demoted Tenancies will be six months, in line with most other grounds. Demoted Tenancies are used where secure tenants have caused a nuisance through anti-social behaviour. This reflects that social landlords have identified anti-social behaviour as a key issue.

Temporary changes to procedures still stand, with amended dates for applications and notices. These include:

  • For applications sent to court before 3 August 2020, claimants will need to issue a ‘reactivation notice’ in writing to the court as these applications have been suspended (stayed)
  • This means that:
    • Claims made before 3 August 2020 will not automatically be processed by the court; they will need to be reactivated
    • For all claims issued before 3 August 2020, if reactivation notices have not already been submitted, a normal application will need to be made to lift the stay
    • For claims made after 3 August 2020, no ‘reactivation notice’ will be needed. It is also not required where a possession order was previously granted then stayed
  • The defendant, meanwhile, will need to state that they want to resume stayed proceedings after the expiry of the stay
  • Claimants must provide any relevant information about the defendant’s circumstances, including information on the effect of the pandemic on the defendant and their dependants. This is primarily so the court can consider defendants’ vulnerability, disability, and social security position, and those who are “shielding”
  • Claimants will need to produce the full arrears history of the defendant in advance, rather than at the hearing (as far as practicable)
  • The court will be able to fix a date either on or after issue, so that hearings are appropriately spread out
  • The court can suspend the standard period between issue of a claim form and hearing (which would usually be no more than eight weeks) to spread out hearings appropriately and ensure that the court has capacity

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Review hearing bundles

It’s also important to note that cases at the hearing stage after the issue of a ‘reactivation notice’ should be listed for a ‘review hearing’ by the court.

This stage was introduced to alleviate the current backlog of cases and assist the courts in prioritising the most urgent cases.

A Judge will look at a bundle filed and decide whether the matter should proceed afterwards to a ‘substantive hearing’ at which point a possession order can then be granted to the landlord.

Since preparing said bundle can be a complicated and time consuming job, Landlord Action has put together a specialist team to help landlords with this process – get in touch to find out more.

 

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Looking forward

As ever, communication, understanding and transparency are absolutely key, as they have been throughout the COVID crisis, and this is a mantra that should continue to echo into any long-term fallout. In the majority of cases, it’s going to be all about discussion and managing expectations and a large part of that is mediation.

Landlord Action has partnered with the Property Redress Scheme to help landlords regain possession of their properties. Landlords who use Landlord Action to serve notice on their tenants and start the process of eviction, can choose to simultaneously use the Property Redress Scheme’s tenancy mediation service to come to a resolution outside of court.

Paul and Landlord Action are also officially backing the NRLA in their call for the Government to bring in a tenant saver loan scheme similar to schemes in place in Scotland and Wales.

This will mean that when tenants have been affected financially by COVID-19, the Government will loan the tenant the monies for rent arrears and pay it directly to the landlord. This way, everyone is happy as the tenant can’t be evicted by the landlord and still gets paid and that tenancy is sustained.

 – Paul Shamplina, Landlord Action Founder and Hamilton Fraser Chief Commercial Officer

Going forward, Paul can see a lot of landlords “looking at direct three and five-year tenancies with councils offering guaranteed rent,” because landlords will be worried about their tenants’ employment situations. But that’s looking forward.

As for what landlords can do right now to stem the tide? Write to your MP to outline the importance of addressing COVID-related arrears and how this is affecting your business and others in your area. Because, while we are pleased that the Government has finally put a soft date on the beginning of the end of these emergency measures, nothing has been done as of yet to address the rent debt crisis.

Another two-month extension means debts will continue to increase without money coming in for thousands of landlords. With research for the NRLA suggesting that 840,000 private renters in England and Wales could have built rent arrears since the pandemic began in March last year, it’s vital that landlords continue to lobby for a financial support package. Otherwise, the sector could be left in dire straits by the time summer rolls around.

It’s also important for landlords to open a dialogue and mediate with their tenants, working that much harder to reach an amicable solution because taking it to the courts is just not practical right now.

The Property Redress Scheme tenancy mediation service is an NRLA-endorsed scheme that exists for this very reason – sorting disputes with common sense and practical advice. He also thinks that landlords will need to be a lot more stringent with their referencing and will insist on having guarantors.

Whatever curve balls 2021 continues to bring us, it’s up to us to work together as a sector to hold each other up. It’s only by working together that the private landlords of this country, and the 4.5 million renters that live in their properties, can continue to coexist in harmony. COVID or no COVID.

 

If you are an independent landlord in further need of guidance regarding residential  tenant eviction, contact Landlord Action today.

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