TENANCY NOTICE PERIODS: in England, old periods are coming back with new forms

FIFTH 'RETURN OF BREAKING LAW' UPDATE  - TO CHAPTER 67 ('AT WAR WITH YOUR HOME LANDLORD')

01 October 2021. A Friday. Remember it well. It is the day on which residential landlords in England will be screaming in ecstasy. Those temporary notice periods which were brought in to provide some respite for tenants being booted out during the pandemic for defaulting with their rent or other transgressions - at one time, six months' notice! - are coming to an end and the pre-pandemic notice periods are coming back. When? On 01 October 2021, of course. A Friday. I know you have already remembered that. So it's generally back to at least two months to 14 days' notice depending on the type of tenancy (and for much more on that, take a butchers at my latest book what I wrote 'The Return of Breaking Law'). 

Notices already served and proceedings already underway on the strength of them are unaffected. It is only notices that are given to tenants on or after 01 October 2021 - a Friday - that will be governed by the changes. Some landlords who have more recently given notice to their tenants for the longer temporary periods may well be tempted to withdraw those notices and serve fresh notices on or after 01 October 2021. They will need to get out their diaries and calculate whether they will be better off doing so.

So far, then, a boost for landlords. But a trap too. That's because the prescribed notice forms are changing to reflect the reintroduction of the original notice periods. A landlord who serves an old form on or after 01 October 2021- a Friday - does so at their peril.

The actual new regulations with the new forms are waiting for you at the Coronavirus Act 2020 (Residential Tenancies) (Amendment and Suspension) (England) Regulations 2021 (SI 2021/994). The forms that change are form 3 for notices under section 8 of the Housing Act 1988, form 6A for notices under section 21 of the Housing Act 1988 and the part 2 notice under section 83 of the Housing Act 1985 which was given a couple of injections of Botox so very recently (see https://www.breakinglaw.co.uk/2021/08/council-repossessions-in-england-new.html).

I almost forgot. The legislators' right to bring back the longer temporary periods is retained right up to 25 March 2022 just in case too many of you go into Waitrose without a face covering.

Another ground of challenge for tenants: another trap for landlords

County court bailiffs and High Court enforcement agents (who are the uglier and more enthusiastic form of bailiff) in England and Wales must now generally give you advance written notice that they are coming to evict you from your home when you have stayed put after the court has made a possession order against you. How long in advance? At least 14 days. [see https://www.breakinglaw.co.uk/2020/08/bailiffs-about-to-awake.html ] The notice must specify the date and time of the eviction appointment.

But say the eviction does not take place on the specified date? Perhaps the bailiff or agent were off work with a bellyache or the court halted the eviction so that rent or mortgage payment arrears could be cleared but this has not happened. A new court procedural rule which comes into force on 07 August 2021 (see SI 2021/855) requires that a fresh written notice must be given which again specifies the date and time for eviction and at least seven days before the second appointment. 

The court does have power to dispense with the first or the second notice or to increase or shorten  the notice period.  This is something that landlord or tenant could raise with the judge at any court hearing at which the first appointment is being postponed or the second appointment is being arranged. Failure to give the prior notice - at least 14 or seven days - could invalidate an eviction that proceeded and entitle the tenant to ask the court to allow them back in and  for the eviction process to be restarted.

The Ministry of Justice has just updated its  guidance given to bailiffs and agents during the pandemic. It should be followed in England and taken into consideration in Wales alongside its own health and safety laws.  A check should be made with the household before bailiff or agent pounce and if it is established that an occupier has the virus symtoms or is self-isolating the action proposed should not go ahead. Oh and bailiffs and agents should not shout as that could increase the risk of virus transmission!

Also on the possession front, the temporary rules for landlords having to give a reactivation notice for  claims which were halted because of coronavirus are being extended to 30 November 2021 (Civil Procedure Rules 2018 Practice Direction 55C as modified by the 133rd update).