Stay at Home – Housing Law in the Coronavirus Pandemic

In a time when we are all being urged to stay in our homes it seems appropriate to consider the recent changes to Housing Law in light of the Coronavirus pandemic. This article will consider the Coronavirus Act 2020, Practice Direction 51Z and the Guidance document issued by the Ministry of Housing, Communities and Local Government (‘Guidance’).[1]

90-day suspension of possession proceedings

A new Practice Direction 51Z[2], effective from 27 March 2020, was signed to order the suspension of all proceedings brought for possession under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession for a period of 90 days (with the possibility of an extension upon review). This does not include claims for injunctive relief.

This Practice Direction applies to possession proceedings in the rented, leasehold and home ownership sectors – including all tenants and licensees who fall under the Protection from Eviction Act 1977, possession cases brought by mortgagees against homeowners and landlords against leaseholders. Thus, it does not apply to lodgers, homeless applicants housed under licence (s.188 Housing Act 1996) and some people who are provided with accommodation as part of their employment.

Three-months notice

Under section 81 and schedule 29 of the Coronavirus Act 2020, effective from 26 March 2020, up until 30 September 2020 (subject to review), a landlord must give three-months notice or more (previously two-months) before starting possession proceedings – this applies to both private and social rented sector tenancies. Thus, it applies to assured, assured shorthold tenancies and introductory tenancies. It does not apply to licenses to occupy. If you are provided with accommodation by an employer as part of your job you will only be protected if you have a tenancy that is regulated by the Housing Act 1988.

Accordingly, section 21(1)(b) and section 21(4)(a) of the Housing Act 1988 are amended to be read as ‘three months’ notice (previously two-months). Further, landlords have been encouraged not to commence or continue eviction proceedings without a very good reason to do so, although ‘very good reason’ is not defined anywhere in the Act.

In practice these amendments taken together mean that cases that are in progress – possession proceedings that have commenced on the expiry of a notice seeking possession – will be suspended for 90 days. Whereas a three-month notice issued after 26 March 2020 will expire after three-months. At the expiry of that notice the landlord would need to follow the normal procedure for possession and apply to the courts for a hearing. This process used to take approximately 6-8 weeks, but will no doubt take significantly longer.

There are also new forms for section 21 notices (new Form 6A) and section 8 notices (new Form 3) under the Housing Act 1988. Although there has been some critical commentary in the legal sector that Schedule 29 of the Coronavirus Act 2020 does not formally amend the Housing Act 1988, instead the changes are simply to be ‘read as’ amendments and only for the relevant period (i.e. up to 30 September). It remains to be seen whether a statutory instrument, which would be required to amend the forms, will be introduced.

A landlord can currently apply for a mortgage suspension of up to three-months, including on buy-to-let mortgages, although the amount owed remains and interest continues to accrue. There is no equivalent provision for tenants with Coronavirus-related rent arrears.

It is expected that there will be amendments to the pre-action protocol on possession proceedings to encourage landlords and tenants to work together once the three-months has ended if the tenant has accrued rent arrears. The details and force of this remain to be seen.

Property access and health and safety obligations

The Guidance document addresses this and promotes a ‘pragmatic, common sense approach to resolving issues’. It seeks to strike a balance between, on the one hand, assuring tenants that any serious hazards or dangerous conditions must be remedied, and on the other, reassuring landlords that they will not be unfairly penalized if they are prevented from meeting routine obligations due to Coronavirus. It is clear that the Government’s standpoint is that landlords’ repair obligations have not changed and early communication is encouraged.

Thus, tenants are expected to allow a person into their home to inspect or remedy urgent health and safety issues. The Guidance gives a non-exhaustive list of ‘urgent health and safety issues’, which include:

1. If there is a problem with the fabric of your building, for example the roof is leaking
2. If your boiler is broken, leaving you without heating or hot water
3. If there is a plumbing issue, meaning you don’t have washing or toilet facilities
4. If your white goods such as fridge or washing machine have broken, meaning you are unable to wash clothes or store food safely
5. If there is a security-critical problem, such as a broken window or external door
6. If equipment a disabled person relies on requires installation or repair

Further, in line with Government advice against home moves where possible, the Guidance suggests that the viewing of properties does not fall within their definition of ‘urgent health and safety issues’.

In a country where Multiple Occupancy is very common, it should be noted that a landlord is not obliged to provide alternative accommodation for tenants if others in the property contract the virus. This might be particularly relevant if, for example, there is a keyworker residing in the property whose chances of contracting the virus may be increased.

Comment

It is clear from the above that the Government has provided some immediate, temporary relief and protection. But I would argue that it does not go far enough: tenants are obliged to continue paying rent under the terms of their tenancy agreement, so they are left with no choice but to rely on the goodwill of their landlord if they find themselves in the position of mounting rent arrears over this suspension period. In contrast, the landlord may be able to benefit from the mortgage suspension.

Further, there are no current provisions in place to support those tenants at the end of the suspension period; thus, any rent arrears will remain due and a wave of evictions is probable once the suspension is lifted, at a time when people will already be financially vulnerable and trying to get back on their feet.

The overwhelming message that the Government is intending to get across is that nobody will be forced to leave their home because of the Coronavirus, but I would question whether the measures put in place might simply be delaying the inevitable, and potentially worsening the situation. There might be a significant number of tenants who find themselves at the mercy of an already overstretched Local Authority at the end of this pandemic and there is no doubt that the effects of this pandemic will be felt for a long time to come.

This article is written by Alice Scott, if you’d like any further information on Alice’s practice or the Housing Law Team please contact Jonathan Cue on 020 7353 0711 or via email.

[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876500/Consolidated_Landlord_and_Tenant_Guidance_COVID_and_the_PRS_v4.2.pdf

[2] https://www.judiciary.uk/wp-content/uploads/2020/03/PD-Possession-Final-cleared-SIGNED.pdf