The government has brought in several ongoing rule changes to the tenant eviction process in England and Wales, so here is a brief summary with links to the full details, writes Tom Entwistle.
The government has taken steps throughout the Coronavirus pandemic to modify the rules on taking legal action for rent arrears and other landlord – tenant issues which may result in court action and eviction.
These changes are designed to protect both the tenant, and ostensibly the landlord, throughout this period, though obviously it is impossible to provide blanket protection for both parties.
An existing pre-action protocol sets out the steps a court expects both parties to take before starting legal proceedings, but the government thinks that under the present circumstances, when cases do come to court, protection for tenants can only be guaranteed under temporary legislation to allow the exercise of discretion by judges.
Note: these guidelines are based on English law and are not a definitive interpretation of the law, every case is different and only a court can decide, always seek expert advice before acting or not.
The eviction process in a nutshell:
There are 2 main ways for private landlords to evict their tenants for rent arrears:
- Serve a section 21 ‘no-fault’ eviction notice.
- Serve a section 8 notice. There are different defined grounds for eviction that a landlord will have to rely to apply to the court for a possession order. These fall into 2 categories: mandatory and discretionary grounds.
Both types of notice give the tenant a date they are asked to move out by and if they don’t, the landlord must to apply to the court for a possession order, which will only be granted if:
- The pre-action process has been followed (s.21 & s8)
- notice is correctly served (s.21 and s.8)
- the pre tenancy procedures were followed (s.21 and s.8)
- the ground is proven (s.8)
- the court considers it reasonable (applicable to s.8 discretionary grounds)
An outright possession order will set a date by which the tenant is required to give up possession of the property. If the tenant doesn’t move out by this date, the landlord has to apply to the court for a warrant, which is executed by court bailiffs.
Landlord – tenant negotiations
To comply with the government’s wishes on pre-action negotiations, before trying to recover possession you should make every effort to discuss any underlying issues with your tenant, either directly yourself, through an agent or through a mediation service.
Experienced landlords will know that this is easier said than done: when in difficulty tenants often “go to ground” and refuse to meet or communicate in any way. This is not always the case but to show that you have made every effort it is advisable that after every communication or attempted communication you make notes in your tenancy diary and keep copies of all correspondence and anything that is agreed.
If, in the case of say rent arrears, a rent payment holiday and repayment plan, or a good will reduction is agreed, this can avert a long and sometimes expensive eviction process, and may even retain a good tenant.
Where this process fails to produce a satisfactory result and you are satisfied that everything has been done to attempt a reasonable negotiated settlement, then you may need to proceed to the next stage:
Serve a notice of seeking or requiring possession
You need to serve notice on your tenant which is either a Section 8 or Section 21 Housing Act 1988 notice, specifying the date by which you would like your tenant to leave your property.
From 1 June 2021: – Notice periods must be at least 4 months in most circumstances, including in cases where there are less than 4months’ of unpaid rent. – but there are exemptions for the most serious cases including anti-social behaviour, no right-to-rent and fraud. Notice periods for cases where there are less than 4 months of unpaid rent will reduce to 22 months’ notice from 1 August.
In Wales – notice periods given to tenants from the 26 March 2020 to 23 July 2020 must be at least 3 months for all kinds of notice. Notice periods given on or after 24 July 2020 to at least 30 June 2021 must be at least 6 months, other than for grounds relating to anti-social behaviour which remained at 3 months until 28 September 2020 but have subsequently returned to their pre-Coronavirus Act 2020 lengths of one month or less, depending on the type of tenancy and ground used.
The possession claim
If the tenant does not leave by the notice-date, then the next stage is to apply to the court for a possession order. New rules mean that along with the pre-tenancy documentation you must also attach evidence explaining how the coronavirus pandemic has affected you and/or your tenant.
The tenant may submit a defence based on the legal reasons why a possession order should not be made, and also a counterclaim against the landlord can result, or the tenant may ask for extra time to vacate due to extreme hardship. If a defence is received, the court will send the landlord a copy.
In the case of a section 21 claim, where the ‘accelerated procedure’ procedure has been used, the judge will consider the claim based solely on the document provided (no hearing), and any defence received, and, providing all the evidence is in order, may make a possession order.
You must be available for a review – court discretion
The court will send out a date when the judge will Review the court file, and a date for the substantive hearing. At least 14 days before the Review, you will need to confirm to the court that you will be contactable on that date, and able to send the court an electronic copy of all of the case documents and confirm that you have also provided these to your tenant.
On the date of the Review there will be duty scheme advice arrangements in place to assist the tenant and promote settlement. You should ensure that you will be available to discuss the case with your tenant and where possible reach a settlement with them without the case progressing to a substantive hearing. At Review, if both parties agree, the case will also be referred for mediation.
The government is funding the Rental Mediation Service (RMS) which will be free to use for landlords and tenants. Where you and your tenant reach an agreement, the case will not proceed to a substantive hearing. There are also several commercial mediation services including one run by the Property Redress Service.
Attending the possession hearing
If no agreement is reached at the Review date there will be a possession hearing 28 days after the review date, at which a judge will decide whether to make a possession order or give other case management directions.
Applying for a Warrant of Possession
If a possession order was granted and your tenant does not leave by the date specified in the order, you can apply to the court for a warrant of possession.
However, the tenant can apply to suspend the Warrant. Otherwise, if it goes ahead the county court bailiff will enforce the warrant and carry out the eviction.
Note: – Legislation was in place until the end of 31 May 2021 to ensure bailiffs did not serve eviction notices or carry out evictions but there were exceptions for the most serious circumstances that presented the most strain on landlords. These circumstances were illegal occupation, false statement, anti-social behaviour, perpetrators of domestic abuse in the social rented sector, where a property is unoccupied following death of a tenant and serious rent arrears greater than 6 months’ rent.
These restrictions on bailiff enforcement are to be lifted from the end of 31 May, reflecting the improved public health situation and easing national restrictions. Bailiffs are able to send out notices of evictions and enforce evictions from 1 June 2021. Given the requirement to provide 14 days’ notice, no evictions are expected until mid-June, except in the most egregious cases and bailiffs have been asked not to carry out an eviction if anyone living in the property has COVID-19 symptoms or is self-isolating.
Welsh differences
In Wales, this is subject to a periodic 3-week review, bailiffs are not allowed to enforce evictions until the end of 30 June 2021, except in cases relating to: illegal occupation, anti-social behaviour.
In Wales, if landlords have an outstanding warrant of Possession, or if they have an outstanding Order of Possession and wish to apply for a warrant, they will need to follow a set process to inform the court that their case falls within these exceptions and they want the eviction to proceed, unless the exemption has already been considered by the court and recorded on the possession order.
If the landlord has a warrant of possession which falls outside of these exceptions, this will be executed when evictions can be enforced again. Landlords in Wales are also able to apply for a warrant of possession if they have a Court Order which falls outside of these exceptions; this will also be executed when evictions are able to proceed.
There are a great deal more detailed guidelines on claims for possession in England and Wales, warrants for possession, claims in the court system, cost of claims, anti-social behaviour, mediation and a schedule of notice periods available here.
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