New notice periods for landlords seeking possession of residential property

In the rented sector legal changes continue at pace as the Government reacts to fears of mass evictions, political pressure and mounting concerns about a second wave Covid-19. The ‘stay’ on possession cases in the courts was due to end on 23 August, but instead this has been extended for four weeks, and the Government announced that in England the notice period for section 21 notices and most section 8 notices would be extended to six months.

Regulations changing the notice periods and amending the prescribed forms of notices were made last week and came into force on Saturday 29 August. This is a summary of the law in force between 29 August and 31 March 2021 as it relates to assured shorthold tenancies in the private rented sector.

New prescribed notices

New versions of the prescribed section 8 notice (Form 3) and section 21 notice (Form 6A) are available on gov.uk. These are the correct versions of the notice in England for any notices served between 29 August and 31 March 2021.

Section 21 Notices

The minimum length of time to be given by a section 21 notice is now six months. The default position, if there is no further legislation, is that this will revert to two months in April 2021, but it is impossible to rule out further changes.

Since 2015 there has been a requirement under section 21(4D) and (4E) Housing Act 1988 for landlords to ‘use’ a section 21 notice within certain time period (by starting court proceedings), or the notice ceases to be effective. This deadline has now been extended to ten months from service of the notice, which in practice means landlord will have about four months after expiry of the notice to start a possession claim.

Section 8 Notices

The six-month notice period also applies to section 8 notices, but important, and rather complicated, exceptions apply.

Grounds 8, 10 or 11 with very high rent arrears

If the tenant is in at least six months rent arrears and the landlord is seeking possession based on rent arrears (grounds 8, 10 or 11) the notice is required to give a minimum of four weeks, rather than six months.

Nuisance and criminal convictions – Ground 14

Where the landlord serves a notice relying on Ground 14, there is no minimum amount of time required before the landlord can commence court proceedings. This is a return to the position as it was before the pandemic.

Ground 14 is tricky to summarise accurately, but applies where:

1. The tenant or a person residing in or visiting the property has caused a nuisance or annoyance to someone else, whether that is another resident in or visitor to the locality, or the landlord or someone employed by or working for them; or
2. The tenant has been or a person residing in or visiting the property has been convicted of either:
   1. Using the property (or permitting it to be used) for immoral or illegal purposes; or
   2. Any indictable offence committed in, or in the locality of, the property.

If a landlord relies on Ground 14 and another ground (say because the tenant also in rent arrears), the rules for Ground 14 are overriding and there is no need for the landlord to delay before commencing court proceedings.

Death of Former Tenant – Ground 7

Ground 7 applies where the previous tenant died, and the tenant is someone who inherited the tenancy from the former tenant. The notice period is now three months.

Convictions or other court orders relating to antisocial behaviour – Ground 7A

Ground 7A applies to various situations where formal legal action has been taken against a tenant for antisocial behaviour. The notice period is either one month or four weeks.

Right to Rent – Ground 7B

Ground 7B applies where one or more of the tenants do not have a right to rent under the Immigration Act 2014. The notice period is now three months.

Domestic Violence and Rioting – Grounds 14A and 14ZA

Ground 14A relates to domestic violence but is only available to social landlords. Ground 14ZA applies where the tenant has been convicted for an offence relating to rioting. In either case the notice period is 14 days.

Tenancy Obtained by deception – Ground 17

Ground 17 applies where the tenancy has been obtained on the basis of a false statement given by the tenant or someone acting under their direction.  The notice period is now two weeks.

The Government’s ‘Technical guidance on eviction notices’ sets out further details in a helpful table. In some cases, additional restrictions preventing the notice being served during the fixed term or giving less time than a common law notice to quit also apply.

Notices served last week

The regulations made last week came into effect on Saturday. This apply to any notice served on Saturday 29 August and later, but they are not otherwise retrospective – the changes expressly do not apply to notices given or served before they came into force.

However, a notice served by post on Thursday or Friday may well have arrived on Saturday and therefore is likely not given or served before these changes took effect, meaning that the notice might have become invalid by the time it arrived at the tenant’s property.

Landlords who served notices last week, and tenants who received them, should look carefully at any ‘deemed service’ clauses in their tenancy agreements and consider whether the notice was “given or served” before the changes came into force.

Resurgence of Ground 14?

In cases of very high rent arrears, the effect of these changes will be that landlords are able to start a possession claim reasonably soon. That does not necessarily mean that the courts will be able to hear those claims promptly, but the Government has indicated that claims relating to very high arrears, antisocial behaviour and domestic violence will be prioritised.

Ground 14 is likely to see a resurgence. Ground 14 is a discretionary ground, meaning that judges must consider the facts of the case and have discretion about whether to order the tenant to leave the property. However, if landlords can serve a notice relying on Grounds 8 and 14, if Ground 8 is still made out when the case is heard, the judge will have no discretion (because Ground 8 is a mandatory ground) and the landlord will have been able to start their possession claim much more quickly.

Problems may arise in cases of ‘low level’ anti-social behaviour where judges feel that Ground 14 has been raised only as a device to justify a shorter notice period. Landlords should be cautious about relying on Ground 14, but where the facts of the case justify its use, Ground 14 will be an important and powerful tool for landlords.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*