RESPITE FOR TENANTS REVISITED

Here's an update on https://www.breakinglaw.co.uk

Residential tenants In England, the temporary six month notice period for tenants before possession proceedings can be brought, has been extended to 31 May 2021 and the ban on evictions and the delivery of eviction notices which was last extended to 31 March 2021 is being further extended to 31 May 2021 but the necessary legislation for that is awaited. In Wales, the ban on evictions and delivery of eviction notices has been extended until 30 June 2021 (although will be subject to earlier review) under regulations laid today 17 March 2021 by SI 2021/325. There are exceptions: the occupiers are unknown trespassers; the possession order was made on the grounds of domestic violence, serious offences, anti-social behaviour or nuisance; or the property is unoccupied and the order was made wholly or partly on the grounds of the occupier's death. 

Business premises In England and Wales, the ban on lease forfeiture or re-entry into the premises for non-payment of rent has been extended to 30 June 2021. In order to justify giving notice of enforcement and sending in an enforcement agent to seize goods on business premises under the commercial rent recovery scheme, the amount of rent in arrears (which was originally seven days' worth) has been re-increased on a temporary basis : generally, 457 days' worth as from 25 March 2921 and 554 days' worth on or after 23 June 2021.

Coronavirus-19: RESPITE FOR TENANTS

The government has this afternoon laid before Parliament regulations (see SI 2021/284) which extend the duration of the emergency legislation requiring residential landlords in England to give longer notice periods to their tenants before they can bring court possession proceedings against them.  This legislation will now run for an additional two months, expiring on 31 May 2021. The notice period required is at least six months. The most notable exception is where rent is at least six months in arrears and then a reduced four-weeks' notice will be needed. The notice periods which applied before the pandemic for cases of anti-social behaviour, domestic abuse and fraud still stand. There are special provisions for introductory and demoted tenancies.

Separate regulations have been made in relation to business tenancies in England (SI 2021/283). Landlords will be prevented from evicting tenants for non-payment of rent for an extended period which will now expire on 30 June 2021. Similar regulations have been made for business premises in Wales (SI 2021/253).  

COVID-19: LATEST BUSINESS TENANCY REPRIEVE

A landlord of business premises has a legal right to forfeit the lease of those premises and go into them where the tenant is behind with the payment of rent. That right was effectively paralysed in England by section 82 of the Coronavirus Act 2020 until 30 June 2020. The paralysis is being extended until 30 September 2020 by the Business Tenancies (Protection from Forfeiture: Relevant period) (Coronavirus) (England) Regulations 2020 SI 2020/602 made today 19 June 2020. This protection for tenants generally applies only to tenancies to which Part 2 of the Landlord and tenant Act 1954 applies.

Business Rent Arrears: Trap for Landlord

If a tenant of business premises is at least one week behind with the payment of rent, the landlord can send in an enforcement agent (they are regulated bailiffs who pack quite a punch - not literally) to seize goods to cover the rent due and the costs involved in seizure. This is done under what is called the commercial rent arrears scheme which was set up by the Tribunals, Courts and Enforcement Act 2007 and the Taking Control of Goods Regulations 2013 (SI 2013/1994).

Once the landlord has used the scheme, can they have a second bite of the cherry by forfeiting the lease? The Court of Appeal has just ruled that they can't. Forfeiture would be unlawful because the landlord would be treated as having waived their right to forfeit by using the scheme and liable to pay damages to their tenant. That could be you!!!  This ruling has come in a case called Brar and another v Thirunavukkrasu [2019] EWCA Civ 2032. 

Landlord Traps and Tenant Delights on Forfeiture: 2 New Cases

Landlord forfeits a long lease because of rent or service charge arrears and claims a possession order. The court makes the order but either fails to give the date by which possession must be granted and/or fails to give the tenant the option of paying the arrears and costs before the date expires and thereby earning relief from forfeiture. The order is deficient and an application for it to be set aside should succeed. The form of the order the court has to make is governed by section 13 of the County Courts Act 1984. The order cannot take effect in less than four weeks and it cannot be unconditional. That's the case of Golding v Martin [2019] EWCA Civ 446.

And here's another one a bit like the other one. Until any contractual right to a landlord to re-enter premises under a long lease has arisen the landlord cannot validly serve a notice under section 146 of the Law of Property Act 1925. In Toms v Rubbery [2019] EWCA Civ 128, the lease provided for a default notice to be served by the landlord and 14 days for the breach to be remedied. The landlord had pounced under section 146 before the expiration of a contractual notice. He pounced too soon and so his section 146 notice was invalid and the landlord was not entitled to possession on the strength of that notice.

These cases will not impact on the majority of cases which come before the courts where forfeiture is not involved. If you are a tenant and have been the recipient of an order which you may think is deficient, obtain professional advice before launching a court challenge to the order.