Possession Notices – all change once more!

On 21 August 2020, just two days before the stay was due to expire, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick MP, announced that the current stay on possession proceedings would be extended and would not be lifted on 23 August as everyone had planned for. The stay on possession proceedings is now with us until 20 September 2020. Please see our earlier e-briefing regarding this announcement.

Although there had been a lot of speculation in the housing press that the stay was about to be extended, what had not been foreseen was the Secretary of State’s further announcement that the notice periods to be given to tenants when seeking possession of a property were also to be extended. The announcement was made on 21 August but the specific details on what those changes would look like were not published until late in the day on Friday 28 August. This e-briefing covers the details of those changes.

Notices served pre-29 August 2020

Rewinding slightly, landlords had already been required, under the Coronavirus Act 2020, to give extended notice periods of 3 months on all Notices Seeking Possession (“NOSP”). This applied to all grounds for possession, in relation to both secure and assured tenancies, where a NOSP was being used. The 3-month notice period was also required on Section 21 Notices.

It is important to note that any notices deemed to be served up to and including 28 August 2020 remain unaffected by the recent changes and can be relied upon as long as they are valid and gave the required 3 months’ notice.

Notices served on or after 29 August 2020

With the specific details of the changes not being published until late on 28 August 2020, the timing of the regulations left little or no time for landlords to get to grips with the new requirements, especially coming at the start of a bank holiday weekend. The regulations came into force on Saturday 29 August 2020.

Whilst the regulations themselves are rather complex, the basic starting point is that most notices to be served will now require a 6-month notice period to be given. There are important exceptions discussed below, including NOSP’s and Section 21 Notices.

The new notice period requirement will now remain in force until at least 31 March 2021.

New prescribed forms

New prescribed forms for NOSP’s and Section 21 Notices have been released to reflect these changes. Click here for secure forms or here for assured forms. You can also contact us at [email protected] for copies of the new prescribed forms in Word format.

Remember the notes in the prescribed forms helpfully summarise what the notice periods are. They also confirm what is not very clear from the regulations – that when you combine the ASB short notice discretionary grounds with other grounds (save for the ASB mandatory ground) the short notice period applies.

Notice periods

The notice period to be given does depend on a number of issues such as the type of tenancy held, the type of notice being served and the grounds for possession being relied upon. There are limited exceptions to the 6 months’ notice period which are helpful to landlords. Some notice requirements have returned to the pre-Covid position.

For secure tenancies the following exceptions apply and require a 4-week notice period only:

• Where rent arrears are in excess of 6 months unpaid rent. (If arrears are less than 6 months, the 6-month notice period is required);
• Riot related offences under Ground 2ZA;
• Domestic violence cases where Ground 2A is relied upon; and
• Where a tenant has obtained the tenancy by way of false statement and Ground 5 is used.

For the 4-week notice period to apply to these Grounds only – no other Grounds can be specified in the NOSP served.

For flexible tenancies coming to the end of the fixed term and where a “minded to” notice was served, the subsequent notice required to bring the tenancy to an end, and allow the mandatory Ground for possession to be used, will now also need to be 6 months. This was previously only 2 months.

However, where Ground 2 is being used in anti-social behaviour cases short notice can be given and possession proceedings issued immediately or any notice period you consider reasonable. This applies where Ground 2 is being relied upon together with other Grounds as well.

The mandatory ASB Ground for possession reverts to its pre-Covid notice period of 4 weeks plus expiring on the first or last day of a period of the tenancy.

For assured tenancies the following applies:

• For rent arrears in excess of 6 months, a 4-week notice period can be given. This applies to Grounds 8, 10 and 11. If arrears are less than 6 months rent then a 6-month notice must still be given for all rent related Grounds.
• Where a tenancy has devolved under a Will or the intestacy of a deceased tenant and Ground 7 is relied upon – a 3-month notice period applies;
• Where the tenant has no right to rent and Ground 7B is specified – a 3-month notice applies;
• Where Grounds 14A (domestic violence), 14ZA (rioting offences) or 17 (tenancy induced by false statement) are relied upon – a 2-week notice period is required;
• If the mandatory ASB Ground 7A is relied upon (with or without any other Grounds) then the notice requirement reverts to the pre-Covid position of 4 weeks plus expiring on the first or last day of a period of the tenancy;
• If the ASB Ground 14 is relied upon, it reverts to the pre-Covid position of being able to give short or immediate notice and commence possession proceedings straightaway if the behaviour is serious enough. This applies if Ground 14 is included with any other Grounds (apart from mandatory ASB Ground 7A where the Ground 7A notice rules must be applied);
• A 6-month notice period is also required on any Section 21 Notice served. The Regulations extend the validity of any s21 notices served on or after 29 August 2020. This means that s21 notices will now remain valid for a period of 10 months from the date of service upon the tenant. This extension means that there is the same 4-month period of time to act upon a s21 notice once it has expired as those served pre-Covid. 

Do note that the breach of tenancy and damage to property grounds both carry a 6-month notice period now.

The changes to the notice requirements must be read in conjunction with the guidance issued by the Government for landlords and tenants in March and updated on 31 August 2020 which can be found here. For more details listen to our Possession Update podcast which will follow shortly from our Housing Litigation team.

Replacing a NOSP already served

If a landlord now wants to take advantage of the shorter notice periods for e.g. ASB or serious arrears cases and a NOSP had already been served previously, then the landlord should formally withdraw the first Notice before serving a new one.

Action needed:

• Replace the template NOSPs and Section 21 Notices used on your system
• Review your policy on when you will serve NOSPs to reflect the 6 months arrears point and the Government guidance
• Ensure that the teams who prepare and serve NOSPs for rent arrears or ASB are fully familiar with the new requirements to ensure that NOSPs are valid and can be relied upon once the notice period required has expired and/or once the stay is lifted. Landlords don’t want to wait for a 6-month notice to expire only to find it is invalid when you come to issue possession proceedings!

For more information

For further advice on these matters please listen to our Possession Update podcast which will be published imminently or contact any member of our Housing Litigation team.

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