Untangling service of Housing Act notices

7th May 2020 Commercial Litigation

It is generally good practice for landlords with Assured Shorthold tenants to serve section 8 and 21 notices as soon as they are able when it is necessary. Delaying a notice is rarely worthwhile and serving a notice does not require eviction to be proceeded with. With notice periods now extended to 3 months pursuant to Schedule 29 of the Coronavirus Act 2020, the waiting time for taking action is significantly longer. Considering that section 8 notice periods for most grounds are 14 days and section 21 notices 2 months. Landlords have now had their hands tied and must give the extended 3-month notice until, at least, 30 September 2020. There are specific powers in the Coronavirus Act 2020 to extend this ‘relevant period’ and considering the unpredictability of the current environment, this could well end up being done on short notice.

The waiting game continues even for notices that expire, with possession claims being stayed until (at least) 25 June 2020 by Practice Direction 51Z. Additionally, landlords are asked to behave reasonably and communicate with their tenants in these unprecedented times, where, for example a tenant’s rent arrears could be directly resulting from COVID-19. Nevertheless, there will inevitably be landlords who still want to press on with evicting their tenants where tenants seek to take advantage of the situation and just refuse to pay their rent or in circumstances such as anti-social behaviour where action is necessary. An alternative in extreme cases could be to seek an injunction, albeit only in very limited circumstances. My colleague, David Smith has written more about this.

With various delays in the current process, the question for landlords who want to seek possession is how to minimise the waiting time and maximise their chances of getting results once the system returns to normal, or more likely, to ‘the new normal’. This will become particularly complex in July and August 2020 when landlords would still be required to serve 3-month notices, which will not expire until October or November 2020. Would landlords not then be better off waiting until after 30 September 2020 and serving a 14-day section 8 notice? Or will notices served during the extension period shorten immediately after 30 September 2020, as Schedule 29 does not amend the Housing Act 1988, but merely provides that the affected Housing Act 1988 sections are ‘to be read’ differently during the relevant period? This second interpretation would be attractive but it seems unlikely given that the reading which requires the longer, three month notice, is said to apply to all notices served during the period.

Landlords will most likely be better off hedging their bets, serving a notice with the longer three-month notice period as soon as they can and, if the notice has not expired by 30 September 2020 and there has been no extension to the ‘relevant period’, serving a fresh notice under the more usual regime on 1 October 2020. This strategy should put landlords in the best position to calmly assess their next steps once the notices expire and will cover them in a number of eventualities, which are currently hard to predict. Additionally, it appears that despite the stay on possession claims, a new claim can still be issued but it will be immediately stayed. However, this will at least be putting matters in the Courts’ pipeline to be picked up as they move back to more normal operations. This could be a much better place to be if the relevant period is extended at the last minute. Wise landlords will consider strategies with their solicitors now and get their ducks in a row - this could make all the difference between obtaining a result in a few months or, less hopefully, half a year or more.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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Neli Borisova is a Solicitor located in Londonin our Commercial Litigation department

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