Is Evicting a Tenant a Thing of the Past for Private Landlords?

On Friday 28^th August (bank holiday weekend) Government announced major changes to the eviction process for private landlords in England which have left many landlords asking:

“Will I ever get rid of my bad tenant?”

Most of us are aware that Section 21 has been fading away since 2015 when the Deregulation Act put provisos on what had previously been a “no fault” eviction process and had become a “landlord fault” test.

If a landlord had failed to protect the tenants deposit or had protected it but not given the tenant the correct paperwork in the prescribed time, the landlord can never serve a valid Section 21 on that tenant. If the landlord had failed to give the tenant one of a list of documents before serving the Section 21 that S21 would not be valid. Precious time would be lost while the landlord served the prescribed documents and then served a valid Section 21, at time, with 2 months notice.

There were also time restrictions put in place to prevent a Section 21 being served when the tenancy was set up. A Notice is not valid if it is served earlier than the expiry of the 4^th month of the tenancy but if the Notice was not enforced within 6 months of service it would become invalid and would need to be served from scratch if the landlord needed to remove the tenant.

Retaliatory eviction, where the landlord serves a S21 when the tenant has asked for repairs or replacements ( I am not aware of this being a major issue but…) was prevented once a local authority served a Notice on the landlord, he could no longer serve a Section 21 on the tenant until the requirements in the Notice from the council had been satisfied.

Section 21 has been fading away over the last 5 years

Deregulation Act 2015 as above.
If the Tenant Fees Act 2019 is breached, by a prohibited charge being made to the tenant, a valid Section 21 cannot be served.
23^rd March 2020 Bailiffs instructed to stop taking new cases to enforce court orders and carrying out evictions already booked only under some circumstances.
24^th March 2020 the Section 21 Notice period was increased from 2 to 3 months until 25^th June and no court hearings until 24^th August 2020.
20 September 2020, a notice of eviction must be delivered to the property at least 14 days before the eviction date.
21^st August ban on evictions extended until 20^th September 2020.
10^th September 2020 see STOP PRESS!! below.

The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 !!

August Bank holiday was forecast to be the coldest on record – for landlords letting in England and Wales that was exactly what happened:

A minimum of 6 months Notice must be given to a tenant before an eviction Notice Section 8 or 21 can be enforced.
This applies to every Notice served after 16.30 on 28^th August 2020.
Valid Notices served before that date are still subject to the notice period which was valid at the time of service – look out for tenants finding reasons to force you to serve again.
At the end of the 6 months period a Reactivation Notice must be served on the tenant before the landlord can apply to the court for a Possession Order.
At this point the courts will be backed up to the point that it is likely to take several weeks if not months to get even accelerated possession with a valid Section 21.

A tiny piece of good news was included in the announcement relating to Section 8 Notices:

Ground 8, 10 and 11 where the tenant is at least 6 months in arrears at the date of service of the Notice – 4 weeks Notice can be given. That means that the Section 8 can be served on the second day of the sixth month that the tenant has not paid, not the last day of the sixth month – assuming that the Tenancy Agreement specifies rent is due monthly in advance. These do not need to be consecutive months so long as the arrears add up to the equivalent of 6 months’ rent as stated in the AST. Do not list other grounds, keep it simple otherwise you may be forced to wait 6 months.

STOP PRESS more changes on 10^th September 2020 things got considerably worse for landlords of delinquent tenants!

No cases from before 3 August 2020 will immediately proceed to hearing, but will have to be ‘re-activated’ by the landlord and then subject to a new review at least four weeks before the substantive hearing.
No evictions permitted in England and Wales in the run up to and over Christmas except in the most serious circumstances, such as cases involving anti-social behaviour or domestic abuse.
Evictions will not be enforced in areas subject to local lockdowns.

In a nutshell the additional “protection from eviction for tenants” means that we must jump further hurdles in addition to those above and bailiffs will not enforce Possession Orders “in the weeks of Christmas” No doubt we will be told the actual dates at some point! Possession Orders will also not be enforced by Bailiffs while the area in which the property is situated is in local lock down.

The “new review at least four weeks before the substantive hearing.” There are no details of exactly what is meant by a review hearing but this is likely to be similar to the pre-action protocol which was being looked at before Lockdown which includes Arbitration/mediation to try to reach a compromise and avoid eviction.

I have discussed ways of avoiding the Possession Process below but even if we now end up in court we need to show that we have tried to avoid doing so.

When you are corresponding with a tenant who is in arrears – Confirm every conversation in writing/email. Keep good records of all correspondence between you and the tenant.

If you are prepared to make an offer to write off arrears in order to obtain possession of the property make it very clear that this is an OPTION not a THREAT and that you are trying to help the tenant to move on while protecting yourself from financial losses which would endanger your own financial well-being. This correspondence may well be read in court and your good intentions need to be very clear.

New Court Forms

Do not use any Court Forms which you may already have in hard copy or downloaded, they have all been changed to reflect the changes and can be found here.

Form 6A is for issuing a Section 21

You will remember that the Deregulation Act 2015 put an expiry date on Section 21 Notices, once served, of 6 months. If the Notice was not enforced within 6 months it expired and needed to be served from scratch. The changes made on 28^th August include increasing the life of the Notice once served from 6 to 10 months.

What Does This Mean for a Landlord?

A section 21 Notice must be served giving 6 months Notice from the date of receipt of service – get a Witness Statement or Proof of Posting (its free) from two separate post offices. Personally I prefer a Witness Statement which says that the witness saw the Section 21 Notice go into the envelope and envelope handed to tenant or posted through letter box at x time on xy date. A tenant cannot then say that two empty envelopes came through the door and he didn’t understand why – I have seen this actually happen and the Judge told the landlord to serve again – please do not take the risk of losing 6 months more.
At 6 months a Reactivation Notice must be sent to the tenant and the Court. There is no official Form but there are several templates to guide you on the web, just choose a credible source. Depending on the circumstances the Reactivation Notice sent to the court must state what action we require the court to take, the options are that we want the case: listed, relisted, heard or referred. We must also give any information that we know that relates to how Covid19 has impacted the tenant(s). If we don’t know anything about the tenants personal circumstances we must state that we don’t know anything about how Covid19 has affected the tenant(s) because we don’t know the tenants personal circumstances. I would suggest that this is not the time to “rant” about the tenant, knowing nothing means that there is no argument and we do not want to delay this process. If you have got facts and feel the need to share them with the Judge make them bullet points of facts without comment and be able to back them up with evidence/documents.
We must not delay and must enforce the Notice as soon as the Reactivation Notice has been sent to the tenant. At this point there will be the new Review hearing and at least 4 weeks delay before an actual hearing of the case takes place. Once the process of enforcement has begun the clock stops ticking on the life of the Section 21. Until then we will have just 4 months, following the 6 months Notice in which to begin enforcement action.

Form 3 is for Issuing a Section 8

The first two points above also apply to Section 8 Notices, as does the new Review hearing and at least 4 weeks delay before an actual hearing of the case takes place.
If we are using Ground 8, 10 or 11 we must also include rent account for the previous 2 years or the length the tenancy if less than 2 years.
Expect delays when applying for a court hearing.

Enforcement of the Court Order

When we finally obtain the Order for Possession from the court the tenant will have been given a date on which he/she must leave the property and give us vacant possession. Often tenants will obey the court order and move out but these are strange times and there is no normal.

We have no idea of what our world will be in 6 months time and in particular what renting will look like. There may well be landlords who have suffered huge financial losses or have had to deal with serious anti social behaviour and who have decided to sell up. We may see a reduction in available properties and tenants are more likely to hang on if they struggle to find another property to rent. When they do not move out on the date that the court has told them to we cannot enforce the Court Order ourselves, even asking them when they intend to go can be considered harassment and can put us in the wrong – it’s not fair but it is the law.

We need a court enforcement officer (bailiff) to enforce the Order. Previously landlords have “transferred up” to a High Court Enforcement Officer to enforce a Possession Order issued by the County Court and evict tenants, because unlike other bailiffs, they can turn up unannounced and evict a tenant who has been given a Court Order and has not obeyed the Judge. This is often seen as a quicker way to evict because tenants do not know when the Bailiff is coming and cannot be unavailable.

Unfortunately from 20 September 2020, a notice of eviction must be delivered to the property at least 14 days before the eviction date, unless the court dispenses with this requirement. No notice of eviction can be delivered before 21 September 2020. This has the potential to delay the eviction further. This is in addition to the restrictions over Christmas and in areas of local lockdown.

I have always maintained that landlords should try any legal way to regain possession and avoid S21 or S8. I am often told “It’s the principle”. I respect a landlord who has those principles and will stand by them but, in my opinion, we are in business and a business exists to do business, that means selling ours services and collecting payment. If payment is not forthcoming and need to consider our best options; what is going to cost us less money, time and stress?

Sometimes if we speak to the tenant early on we can prevent the arrears growing or work out a short term reduction with or without a repayment plan for when their financial circumstances change. We are in a people business and we must learn to work with what we’ve got and deal with the issues which affect our tenants’ ability to pay us. This was never more true than now. Often the answer is to write off the rent arrears (yes I know it makes me angry too) and agree with the tenant that they will move out and get on with their lives without the fear of legal action, CCJ etc.

We need to be very careful that we do not put the tenant under pressure because that is Illegal Eviction but many tenants get into a mess and don’t know how to get out. They put their heads in the sand and we are offering them a life line. I once wrote off big arrears and paid for the removal van for a tenant who had been offered a council property but could not afford to move her furniture – It cost me a lot of money and the property was a mess but a young girl and her two children began a new life and I got a great new tenant who stayed for years – Karma?

Another good option is speaking to your local authority. They now have Homeless Prevention Teams and a little funding, they will be happy to talk to you and will often come to an arrangement with the tenant, including helping to pay arrears, in order to prevent you evicting them. To be honest I am not sure exactly how this is working at the moment, I imagine that they will concentrate on those who had a valid Notice before lockdown and will be enforceable soon. I am very keen to know of any cases where the local authority are not helping because they know that the eviction cannot take place until next year, no need for names or addresses just the local authority concerned. Please send me any information via the usual Landlord Vision contact details or find me on Facebook and Twitter.

I believe that late 2021 we will be operating in a renters market and for those landlords who have only been in the business this century this is going to be a big sea change. We need to become more competitive to attract and keep tenants and that means treating them (our customers) with more respect than some landlords have shown until now. I am sorry if you are reading this while dealing with delinquent tenants, I usually like to be positive but I am not feeling optimistic for landlords in your position. I hope that Government listen to the landlords representatives and soften their determination to keep these people in our properties.

I am more grateful than ever for my wonderful tenants.