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.

Council repossessions in England: new notice form required for secure tenancies

THIRD 'RETURN OF BREAKING LAW' UPDATE 

'At War With Your Home Landlord is chapter 67 of my book. You should get to it by around this time next month but only if you read fast and keep off the bottle. Among a multitude of topics, it covers the procedure your social landlord should follow if they want you out. If you rent from a council  one of their own properties then the probability - but by no means the certainty - is that your tenancy is a 'secure tenancy'. The paperwork will make it clear whether or not this is so.

And, if it is a secure tenancy and the council want you out, there is an important change. The prescribed form of notice  - effectively, a notice to quit which is actually called a notice seeking possession - the council must give you and which must run out  before they can start county court possession proceedings in England, has changed. The new form is introduced by the Secure Tenancies (Notices) (Amendment) and Suspension (Coronavirus) (England) Regulations 2021 (SI 2021/946) which title you need not learn off by heart and repeat to me before bedtime. It revises the information about the length of the notice period you should currently be given.

The revised notice should be used by the council for any notice which is given on or after 24 August 2021 (and until it is revised again). Since the regulations which changed the form were not made until 19 August 2021 and since some government websites are still referring to the old form of notice, it is very likely that any notice you have had after 23 August 2021 or you may receive in the near future, will be in the wrong from. In that event, it may well be legally ineffective and you might wish to take that point at some stage when communicating with the council or in a defence to the proceedings which may follow. A bit more time which would result from the council having to give you a fresh notice in the correct from, might well be useful to you. 

 

HOME REPOSSESSIONS: LATEST: TRAPS FOR LANDLORDS, DEFENCES FOR TENANTS: England & Wales

The general coronavirus ban on residential evictions is over. But modifications to the procedure landlords must follow before they can have any hope of the county court making a possession order are still with us - and have changed again.

Firstly, the notice period. There are two kinds of notice which come into play: the fault-notice (arrears of rent, anti-social behaviour and the rest) under section 8 of the Housing Act 1988 and the no-fault notice under section 21 of the 1988 Act. 

In England, in respect of the section 8 notice, at least three months was required during 26 March to 28 August 2020 inc. This was doubled to a stonking six months  during 29 August 2020 to 31 May 2021 inc with variations where rent arrears, anti-social behaviour, rioting and obtaining the tenancy through a false statement were relied on. The six months has now been reduced to four months as from 01 June until 30 September 2021 but different periods will apply in rent arrears cases: at least four weeks for four months' arrears and four months for less than four months' arrears, tapering down from 01 August to 30 September 2021 inc to two months' notice for less than four months' arrears. The notice period on the ground of the tenant being unlawfully present in the UK or in the event of the tenant's death has reduced to two months from 01 June 2021. Notice periods for social introductory and demoted tenancies are amended as from 01 June 2021 and tapered as from 01 August 2021. 

The section 21 notice period in England of the minimum of three and six months as above have applied but as from 01 June to 30 September 2021 inc the six months has been reduced to four months,

Secondly, the form of notice in England. Under section 8, it's form 3 and under section 21 it's form 6A. The forms have been revised alongside changes in notice periods and form 3 was revised on account of the introduction of the debt respite moratoria as from 04 May 2021. Both forms have again been reamended as from 01 June 2021.

In Wales, the current general minimum six months' notice requirement is running until at least 30 June 2021.

So notice has been given but when given it was for less than the minimum period which applied at that time? Then the notice is not worth the paper it was written on. Any county court claim based on the insufficient notice should fail and the landlord should serve a fresh compliant notice and commence new proceedings on the strength of it. And say the notice was not in the correct prescribed form which was current when it was served? There may be a defence for the tenant because of this. It would depend on the ways in which the notice was incorrect and the particular circumstances of the case. Professional advice should be taken on this by the tenant.

Just one other thing. The life of a section 21 notice is limited. If a possession claim has not been started before the notice expires then a fresh notice has to be served. Before coronavirus, the notice had a life of six months. For the period 29 August 2020 to 31 May 2021 it was increased to ten months. It has now been extended to eight months from 01 June to 30 September 2021 inc.

RESPITE FOR DEBTORS - AND NEW NOTICE SEEKING POSSESSION FORM

Yesterday 04 May 2021 a debt respite scheme which cuddles debtors who are individuals over 18 and hits creditors came into force. The breathing space moratorium  (BSM) and the mental health moratorium  (MHM) have been introduced in England and Wales under the Financial Guidance and Claims Act 2018. Both are accessed through an approved debt counsellor or the local authority. 

With a moratorium in place, creditors will be prevented from taking enforcement action in respect of a debt whether it has accrued before or after 04 May 2021 or require the payment of interest, fees, penalties or charges during the moratorium period. The BSM lasts for 60 days. The MHM period is the total of the debtor's mental health crisis period plus 30 days but that could be followed by a BSM 60 days. The BSM may be applied for annually. The MHM can be applied for as and when a mental health crisis recurs, without limit.

Not all debts qualify. In are those under a warrant of possession, court judgment and personal and crown debts. Out are secured debts (generally), business debts if the debtor is VAT registered or in partnership and the debt relates to the business and debts which mirror the bankruptcy discharge exemptions. A charging or attachment of earnings order made before 04 May 2021 will be unaffected. 

With a BSM, the debtor must keep up certain defined payments which accrue during its currency including taxes and mortgage instalments. Failure to do could lead to cancellation of the BSM at a midway review by the debt counsellor. A creditor can ask for a review of either moratoria within 20 days of its inception and can apply to the county court for cancellation if the review goes against them.

The court or a tribunal may grant permission to a creditor to take an enforcement step either before or after they have started proceedings.  In the absence of permission, any bankruptcy petition pending against the debtor based on a debt which qualifies for a moratorium must be halted. Any application  or appeal to the county court allowed by the moratoria should be made by application notice in form N244. A fee of just £5 has been set for a county court appeal by a debtor who is aggrieved by a refusal to have their usual residential  address disclosed to creditors. 

You will find  highly digestible guidance on the moratoria at gov.uk/government/publications/debt-respite-scheme-breathing-space-guidance if you want more.

A knock-on effect of these new laws is that the notice (form 3) which a landlord after possession of their property and relying on rent arrears is required to serve on their tenant before they can begin court proceedings - it's called a notice seeking possession - has been amended as from 04 May 2021. The new form draws attention to the fact that it cannot be served where a moratorium is in force, without county court or tribunal permission.