Residential Lettings & the Coronavirus Bill

Trinity housing law barrister, Tom Tyson examines the proposed amendments to the Coronavirus Bill in the context of Residential Lettings.

There are a mix of opposition and government amendments. Quite apart from the discrepancy between what the Housing minister promised last week (press release Rt Hon Robert Jenrick MP published 18/3/20) and the detail in the amendments (this note leaves politics aside) the matters relating to residential lettings are tucked away at the end (pp. 55-60).

The proposals

In essence, what is proposed is that the required notices before commencing residential possession proceedings are given an extended expiry period by law, of 3 months, with power for the government to extend that to 6 months as a contingency.

Then most important of these are that:

  • Notice under s. 21 Housing Act 1988 to end an assured shorthold tenancy will be 3 months instead of 2;
  • A section 8 Housing Act 1988 notice (‘fault’ grounds for possession against assured tenants) will also have a 3 month expiry;
  • A section 83 Housing Act 1985 notice (‘fault’ grounds for possession against secure local authority tenants) will also have a 3 month expiry;
  • A similar extension is in place for introductory and demoted tenancies and for social tenants who face the ‘new’ mandatory grounds for possession;
  • Notices to quit (for Rent Act 1977 tenants or unprotected tenants/licensees) are also to have a 3 month expiry.

It seems that the plan is that for all new notices served after the Bill becomes law, to extend the notice period to 3 months. This is welcome breathing space, but does not provide a moratorium on possession proceedings which was heavily implied by the press release, nor does it concern notices already served, or proceedings already issued, or indeed enforcement of any possession order by bailiff warrant of possession.

Future notices, therefore, will be covered by the proposed government amendments.

By force of administrative pressure, rather than substantive law, notices that have expired are unlikely to have proceedings issued in the near future.

Claims that have been issued already are being dealt with by procedural and practical constraints – most possession lists are being adjourned for a 3 month period (although if you are subject to such proceedings, it is imperative to check with the court).

Even if the amendments have the effect of deferring some proceedings, and deferring the commencement of some possession claims, the enforcement of orders and timing of possession hearings has largely been left to individual court centres to manage. 

What did Parliament Intend? A simple amendment providing a partial solution

One omission (there are numerous others), seems to be a missed opportunity to enact a temporary amendment to s. 89(1) Housing Act 1980.

That section provides that where possession is mandatory (i.e. s. 21 assured shorthold cases, introductory and demoted tenancies, mandatory ground for possession claims) the court is prevented by statute from postponing the date of possession beyond 14 days unless ‘it appears to the court that exceptional hardship would be caused’; in those circumstances the court may postpone the order for a period not exceeding 6 weeks.

The text of s. 89(1) Housing Act 1980 reads:

‘Where a court makes an order for possession of any land in a case not falling within the exceptions mentioned in subsection (2) below (Mortgage possessions, forfeiture or discretionary possession claims (which all have their own statutory rules for postponement or suspension), the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.’

For those cases that have been issued and are heard, or have been heard, what then? The court is mandated by statute to make an order for possession; the court is mandated not to postpone for more than 14 days where ‘exceptional hardship’ can be shown and for a maximum of 6 weeks. This is, of course, half the time that the government intend evictions to be placed effectively ‘on hold’, according to the press release.

Parliament needs, in my view,  to consider a short and easy amendment to s. 89(1) Housing Act 1980, as a temporary measure, to remove the words preventing postponement and simply providing for the court to have a wider discretion to postpone enforcement of orders for possession made in mandatory cases whilst the crisis continues.

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