Government Restrictions on Landlords and Possession

As part of the passing of the Coronavirus Bill through Parliament today, the government laid a series of amendments which were designed to give effect to the announcement last week that landlords would be prohibited from evicting tenants for the next three months.

The exact form of the final Act is hard to divine at this stage. The amendments can be seen but the debate is not fully online until tomorrow and the Bill was pushed through without votes so the exact incorporation of the various changes is hard to read. However, this is likely to be the final version.

The amendments work by inserting a new Schedule into the Coronavirus Bill relating to residential tenancies.

The residential provisions appear to be rather different from those specified by the government. There is nothing in them about stopping existing evictions or preventing eviction proceedings from being issued. Although it is possible that other measures will be brought forward to do this without using a parliamentary bill. Instead the government has amended the Housing Act 1988 to state that no notice under section 8 or section 21 is valid unless it is at least three months. This time can be extended further by ministers at will. This will not affect notices already served which are not yet the subject of possession proceedings or ones that are and so those cases should be clear to proceed. These changes will apply in both England and Wales and the Welsh government has indicated that they will adopt these provisions.

This is all a bit of a mess.

• First, the provisions clearly do not do what the government said they would do. There appears to be no protection here from eviction for existing cases. Perversely, the courts appear to have taken it upon themselves to do this anyway by adjourning all possession cases for three months. This listing protocol for North and West Yorkshire and Leeds is typical of the decision making. Bailiff’s offices are also unilaterally cancelling appointments, presumably because the bailiffs themselves are less than keen to enter properties and be close to people who might be infected. These decisions have prevented lenders recovering possession as well. It may be that this is something that many people would want and they may well be right but these decisions should be made by government and not on the hoof on an inconsistent basis by different court circuits.
• Second, the provisions leave a whole host of tenancies unprotected. Any form of agricultural tenancy, such as under the Rent (Agriculture) Act 1976 is not covered. Neither are residential licences, service occupancies, or any tenancy which is not covered by any legislation (“Non-Housing Act Tenancies” in the trade).
• Third, there are time limits on the use of section 8 and 21 notices. These are not changed and so they are now effectively all one month shorter. The problem here is that if the notice period was extended to 6 months then a section 21 notice could not be served in England at all as the notice period would have to be for 6 months and the notice would have to be used within 6 months after its date of service.

For business tenancies there is also an important set of provisions. These prevent a landlord who has a tenant protected by Part 2 of the Landlord and Tenant Act 1954 from enforcing any right of forfeiture at all, whether by self-help or court proceedings. This lasts until 30 June 2020 or until such later date specified in regulations. These extend to England and Wales and there are very similar provisions for Northern Ireland. Where a landlord is prevented from exercising a power of forfeiture then this shall not act as any waiver or other permission for the tenant to breach the tenancy and so the landlord will be fully able to exercise that right at the end of the blocking period.

Notably however, any tenant who is the intermediate in a rent to rent arrangement is not protected by these provisions because their tenancies do not fall under the provisions of Part 2 of the 1954 Act.

These provisions could be seen by the government as fulfilling what they offered. I doubt that tenants will see it that way and, frankly, they are probably right. There are also just way too many gaps leaving significant numbers of tenants both residential and commercial without cover at a time when every person and business needs protecting. Even worse, the confused messaging and announcements made from Downing Street without sufficient link-up with departments has led to the kind of unilateral and inconsistent action that we have seen the courts take. This can still be fixed. The Bill gives substantial powers to ministers to act unilaterally and they can do more to resolve these gaps and inconsistencies. They could also issue clear and unequivocal guidance to the courts as to exactly what they should be doing. Whether this will be a priority is less certain.