Getting Eviction Ready Part 2 – Navigating the Post Moratorium Evictions Terrain

Welcome to part two of the getting eviction ready series where we continue our eviction journey. Navigating the post moratorium eviction terrain can be an uphill task. In this article, we skilfully trek the eviction terrain together as we provide answers to the questions you, as landlords have raised. 

Landlord Questions and Answers on the Moratorium Evictions

1. On 26 August 2020, I served my tenant with a 3 months eviction notice for serious antisocial behaviour. Just a few days later, the extended eviction ban changed the notice period to just 4 weeks. I urgently need to evict this tenant. Can I re-serve another shorter notice period in light of the new regulations? 

• Yes, you can. You simply need to withdraw the first notice before you serve a new notice. Landlords are allowed to serve new, shorter notices, to take advantage of the new regulations where appropriate. This applies in circumstances where they are issuing a new notice of the same type.

• My professional tenant was furloughed and his employer topped up his salary to 100%. He still hasn’t paid rent for 5 months. It is not that he can’t pay. He just won’t pay. In the absence of eviction. Is there any way of recovering the money owed? 

• You can still collect the money that you are owed by the tenant. Our forthcoming article on dealing with rent arrears will cover this in more detail. In summary, the options available are:
  • Opening up a dialogue with the tenant as soon as possible.
  • Sending a formal rent demand letter to the tenant giving them a reasonable opportunity to respond. 
  • Negotiating and agreeing on a payment plan, if practicable. Ensure the agreement is in writing. 
  • If there is a guarantor, engage with or indeed pursue the guarantor (if they are financially worth pursuing) 
  • Small claims court action for arrears recovery by way of a money claim. Before you do that, ensure you comply with the pre-action protocol by sending a letter before action.
  • You may also be able to serve a statutory demand in the alternative or simultaneously.
  • Dependant on the tenant’s financial circumstances and entitlement to benefits, you may be entitled to a direct payment of housing benefit.

• I am a landlord and I want to reduce rent for my tenant. Will this breach the deposit cap as defined by the Tenant Fees Act 2019(“TFA”)?

• The TFA deposit cap is linked to initial rent levels. There is no need to repay part of the deposit immediately if you do decide to offer your tenant a rent deduction permanently or indeed temporarily.

• I served a Section 21 Notice on my tenants last week. How long is the notice valid for? 

• It appears you served the section 21 notice after 29 August. That being the case, the notice will now remain valid for an extended period:
  • Where Section 21(4D) applies, the notice is valid for 10 months from the date it is given to the tenant
  • Where Section 21(4E) applies, the notice is valid for 4 months from the eviction date specified in the notice.

• My tenants are leaving the country. They want to end the tenancy early. What are my options?

• The strict legal position is that the tenants will be liable to pay the rent for the remainder of the fixed term, or for the contractual notice period.
  • As a landlord, you must do your utmost to mitigate your losses by finding a new tenant.
  • You are entitled to charge a fee to tenants if they wish to end the tenancy early. The fee must not exceed the loss incurred.
  • Reasonable costs to the landlord’s letting agent, if using one, can also be recoverable. 

• My tenants have left the property without providing proper notice. What should I do?

• If landlords believe that their tenant has left the property but has not surrendered the tenancy by, for example, notifying them in writing and/or returning the keys, they should verify that they have left the property before taking any further action.
  • Landlords could do this by using any contact information which the tenant submitted at the start of the tenancy, such as contacts for rent guarantors or friends and family. If they are still unable to locate their tenant, they may wish to use a tracing agent.
  • The tenant has a right to the quiet enjoyment of their property and should be given 24 hours’ notice of any visit to the property. Landlords may only enter the property in the case of an emergency, and in this case only when accompanied by an independent witness who will be able to record the situation in writing.
  • If landlords change the locks or enter the property and have not got confirmation that their tenant has left, a court may find that they have evicted their tenant illegally.

• When courts resume considering possession cases, what new arrangements will be in place?

• New court rules will come into force on 21 September 2020. As part of the process, landlords will be required to set out in their possession claim any relevant information about a tenant’s circumstances, including information on the effect of the COVID-19 pandemic. Where the claim is rent arrears based, landlords must provide an updated rent account for the previous two years in advance of the hearing.
• Judges will have the ability to adjourn proceedings Where this information is not provided. A reactivation notice will be required where a landlord made a possession claim to the court before 3 August 2020. This must be served on the tenants and filed with the court.

Disclaimer

None of the information in this article is intended to constitute, nor does it constitute, any legal advice or guidance.  No warranty, express or implied, about the accuracy or reliability of this information is made.  If you have questions, please contact Creative Legals.