The roadmap out of lockdown

In February 2021, the Prime Minister presented to the nation the ‘roadmap’ for bringing the UK out of lockdown further to the COVID-19 pandemic.

This roadmap focused mainly on when meeting others and similar activities will return to being lawful, however, little was stated about when the Courts Service will return to some form of normality.

On 29 March 2021, the ‘stay at home’ provision of lockdown was removed, and meeting others outdoors became permitted once again, subject to the rule of six.

How does this effect landlords’ rights to evict tenants?

On 30 March 2021, the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 came into force. Paragraph 2 of these Regulations provides that the requirement to give six months’ notice of possession for both section 8 and section 21 notices will continue to be in force up until 31 May 2021.

This will be a disappointment to landlords who were waiting for the expiry of the previous regulations on 31 March 2021 to serve such a Notice.

Are there any ways of enforcing an eviction before 31 March?

The exceptions to this, however, such as where only 4 weeks’ notice can be given under section 8 where there are serious rent arrears of 6 months or more, also continue to be in force.

The same regulations also extended the effective moratorium on evictions until 31 May 2021.

Therefore while one can get a possession order at present, one will not be able to enforce it until after that date, unless one of the exceptions such as there being at least 6 months’ rent arrears applies.

Available options for a landlord get vacant possession of their property

The question therefore is, should landlords seeking to regain vacant possession serve notice now, or wait until 31 May 2021 and then serve a section 21 notice which by then will only need to be 2 months in length and thus be able to issue proceedings two months earlier? It is not clear.

We prefer, at the moment, to serve section 8 notices if possible as if there are significant rent arrears a shorter notice period will be permissible.

However if there are no rent arrears, or the motive for seeking possession is in order to sell the property or similar, what should be done?

Changing legislation in a pandemic

Unfortunately, given that these regulations were made on one day’s notice of their coming into force and two days’ notice that the restrictions on possession proceedings would be extended, we cannot say with confidence that they will not be extended yet again.

Despite the Government’s ‘roadmap’ out of lockdown, the reality is that regulations and restrictions have cycled in and out of force on short notice throughout the COVID-19 pandemic.

And though the Prime Minister has stated that the Government will be decided by “data not dates,” it is clear that one cannot assume these regulations will not be extended again.

Moreover, prior to the Covid-19 pandemic there had been some discussion in Government circles to repeal Section 21 of the Housing Act 1988 entirely, thus meaning all evictions would have to be ‘for cause’, and a general extension of all section 21 notices may provide a convenient transitional ‘bridge’ for them to do this.

Suggested steps for moving on quickly

As such, we are not in a position to definitively predict what will happen after 31 May 2021.

However, it is best to assume that these regulations will be extended again and serve Notices sooner rather than later.

If the regulations are not extended, then a fresh, two-month notice can be served after 31 May 2021 and the previous six-month notice withdrawn.

How does this affect commercial landlords?

In the commercial sphere, forfeiture of a lease for non-payment by re-entry continues to be in effect banned until 30 June 2021, and the use of Commercial Rent Arrears Recovery (CRAR) (formerly distress for rent) continues to be limited to where there are arrears over a year.

This is as part of a package of measures to support businesses during a period when legally they may have been expressly or as a side effect of other lockdown regulations forbidden from trading.

However it is not a rent-free period and rent has remained due and owing throughout lockdown.

Contact Cunningtons LLP for assistance

Cunningtons can help you in respect of all aspects of commercial and residential landlord & tenant work in this uncertain time.

Please contact our Braintree office on 01376 327868 for a confidential discussion.

2 thoughts on “Landlords’ Repossession Process in Covid-19”

  1. My cafe tenant has paid no rent for over a year and not traded since last august.
    Can I enter and change the locks before 25 th March?

    1. Thank you for your comment. This is not really the forum for this question. This blog relates to property misrepresentation and auctions sales of property.

      However, we do act for landlords of commercial properties, particularly when there are rent arrears. The basic position is that what rights you have as a landlord depend on the terms of the lease. The lease would need to expressly reserve your right to enter onto the premises and change the locks when there are rent arrears. This is called peaceable re-entry. However, the safest way to end the lease and obtain possession of the premises is via Court action. This also generally minimises the risk of a tenant applying for relief from forfeiture and seeking damages. You state that the tenant is not trading and the non-payment of rent might be indicative of that, however this is not a guarantee.

      If the tenant is not trading, they/it may be insolvent. This again may provide a basis to terminate the lease or may bring the lease to an immediate end. Much will depend on the terms of the lease. It would be worth checking formal registers, such as the individual insolvency register (for individuals) and Companies House (for companies) to see if there are any formal insolvency processes in motion.

      We presume your reference to 25th March is because it is the date where rent falls due. This is one of the “usual quarter days”. Provided that there has been no waiver of the right to forfeit (such as demanding rent) and providing the criteria for terminating the lease has arisen, it is unlikely to matter when the locks are changed.

      If your reference to this date is a reference to legislation, it is also probably no coincidence that the Coronavirus Act 2020, which restricts a landlord’s rights to take action to obtain possession of commercial premises for rent arrears (but generally not other breaches of the lease), specifies 25th March 2022 as the last day for the prohibition on exercising the right of re-entry.

      In summary and on the assumption that all other requirements are met to exercise any right of peaceable re-entry, the broad answer to your question is no, you cannot exercise this right because the Coronavirus Act 2020 prohibits this. However, you should obtain legal advice before doing anything.

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