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Housing Barrister Explores Residential Lettings in Light of COVID19


Trinity housing law barrister, Tom Tyson has prepared the following briefing note prompted by a report on Twitter of a summary eviction being threatened against an NHS paramedic. Given the brevity of that forum, there is no way of verifying the surrounding facts, but the issue may be widespread and as a result, key workers in residential accommodation should be aware of their rights. What follows is a general summary; it is not advice to be relied on in every case. If in any doubt, legal advice should be sought.

The nature of the occupation

The most important question to answer is how the residential occupation came to happen and what type of residential accommodation it is.

In most circumstances, paying a weekly or monthly rent for occupation of self-contained residential premises means that a tenancy has been created.

If a tenancy has been created, the likelihood is that the tenancy is an assured shorthold tenancy (‘AST’). This is governed by the Housing Act 1988.

The key questions about whether a tenancy has been created are:

  • Whether rent is paid (usually weekly or monthly);
  • Whether you have what the law calls ‘exclusive possession’ (again, usually, a self-contained house or flat, with a lock on the door and containing necessary facilities or cooking, cleaning and bathing);
  • Even if they are satisfied, it may not be a tenancy if (for example) you are an employee occupying as a term of your employment contract, or a family member of the landlord.

If you have ‘rented’ a room in a house where the house is shared with your ‘landlord’, the likelihood is you don’t have ‘exclusive possession’ and as a result, you are a licensee or a lodger.

Landlord Seeking possession

Lodger

If you are a lodger, your occupation can be terminated in accordance with the agreement reached. Your occupation is unlikely to be an AST, and the Protection from Eviction Act 1977 will not help – if your agreement requires you to share accommodation with the landlord or a member of the landlord’s family and they occupy the property as their only (or main) home.

If you are unsure whether the above applies, you should seek further legal advice.

If it does not apply, then at the very least you will be protected by the requirement that the landlord will need to serve a 4 week notice to quit and obtain a court order for eviction.

Tenant

If you are a tenant of self-contained premises and don’t share the property with your landlord, you are likely to have an AST. This can only be brought to an end if:

(a) you are at ‘fault’ (e g arrears of rent, breach of the terms of the tenancy); or

(b) the landlord has served a notice complying with s. 21 Housing Act 1988 (which does not require any fault on the tenant’s part).

A s. 21 notice must give 2 months’ notice and eviction proceedings cannot be brought until it expires. There are also a number of technical requirements concerning gas safety certificates, energy performance certificates, ‘How to Rent’ information and deposit protection. If the technical requirements have not been followed, the notice will probably be invalid. In any event, 2 months’ notice is required. On expiry, a court order is required to evict a residential tenant.

Possession proceedings

The government have announced on 18th March 2020 that emergency legislation will be introduced in response to the Covid19 crisis. There is no detail as yet, but if we are to take the government announcement at face value:

Evictions will be suspended – this would cover cases which are proceeding through court or are at the stage of bailiff enforcement.

No new possession proceedings are to start during the crisis – this means that even if a s. 21 notice has expired, the landlord will not be able to start court proceedings to get an order for possession.

The legislation is not yet in force, although the guidance being offered from senior judges to all local courts is that current proceedings should be put back to a date in mid to late June; the courts are also unlikely to accept a request to start proceedings during this period. If you are in any doubt, you should seek legal advice or contact (by phone or email) your local court centre if possession proceedings have already started.

Conclusion

If you are a residential tenant, your landlord cannot simply ask you to leave. Notice has to be served. Notice has to be in the correct form. Notice has to comply with strict technical requirements. Notice has to expire. On expiry, the landlord has to apply to the court. The court is unlikely to process that application for a while during the crisis. Any attempt at eviction without a court order is unlawful and potentially a criminal offence.

If you are a lodger, sharing accommodation with your landlord, the position is more complicated and depends on your individual agreement – how long was your notice period? Does the landlord in fact live with you as their only or main home? In such circumstances, if asked to leave, you should seek legal advice.

Having practised in this area of law for 25 years, this is unprecedented. The law is technical and complex. If you are a key worker, placing yourself in danger during the Coronavirus crisis, the likelihood is that the legal profession will come to your assistance with advice. The vast majority of housing lawyers will be happy to help.

If you are in trouble, seek advice. An excellent and updated summary can be found here.

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