New Rules regarding services of notices that every landlord needs to be aware of
Why has the Government extended the notice periods for tenancies?
We are not only in unprecedented times but completely unchartered waters. The Government have decided that it is important that tenants have more rights at this moment in time ensuring that they are able to stay at their property.
They have decided that Section 21 Notices which in effect are ending at a tenancy can now only be served on the basis of six months’ notice. This is an amendment from their previous rule which was three months. If you have thus served a notice before the 29th August this year then you will still be able to request the tenant to leave. If not, you now need to serve six months’ notice on your tenants. This is now in place until March 2021. So you will have to consider your position quite carefully when either granting a renewal on the property or when you may wish to have it back.
A Section 21 Notice was used to give two months’ notice. Unfortunately, the Government decided that after the 26th March 2020 the Notice needed to be extended to three months and now six. So we confirm as follows:-
- A tenancy of six months when would I need to serve the Notice?
This is a very good point. It all depends on what you plan to do with the property once the end of the six months comes around. If you are planning to re-let it then there is no need for you to serve a notice. If however, you are thinking of selling it, then in real terms it is worth serving a notice right at the beginning of the tenancy to let the tenant know.
Does that mean that the tenant can leave immediately?
No, what it means is that they have been given notice that at the end of the six months tenancy you will need possession back. If they do not leave you will still have to go to court and get a court order and we will come on to this later.
What if I want to renew the tenant say after four months rather than the notice?
The notice can be rescinded at any time but tenants may have already decided that they wish to leave. It is a fine line between sending them a renewal and sending them a notice and it is something that you may need to consider quite seriously.
How long does the tenant need to give a notice on a six month tenancy?
The tenants still only have to give one months’ notice whether it is a six months or twelve months tenancy. However this can only be given at the end of the eleventh month. It cannot be given any time before unless you have a break clause which again we will come on to later.
When do I have to give notice on a twelve month tenancy?
You would need to give notice on a twelve month tenancy six months in because this is the new law. It depends on when it finishes and whether the Government decide to extend the period in March 2021. There is a high likelihood that they will extend the time period for these types of notices but it depends on what happens in the courts and again we will come on to this later.
Break clauses are they enforceable?
An Assured shorthold tenancy is a term fixed for a period of time. Putting in a break clause within an assured shorthold tenancy whilst both parties may agree it it is not enforceable. The courts will always side with the landlord in that it is a fixed term and it should be always accepted as this. It thus works for the landlord rather than the tenant because if a tenant gives notice and the landlord does not accept it even if it is was the intention of both parties within the contract a judge would always side with the landlord as it is for a fixed term.
What if my tenant is in arrears are there different types of notice periods?
The Government has laid out various different types of notices which can have different time periods. These are as follows:-
- Anti-social behaviour
If you have a tenant that has anti-social behaviour then four weeks’ notice can be served on the tenant. You would need to prove evidence that the tenant has committed anti-social behaviour either from a local authority Noise Abatement Department or your own evidence to show that they have bene anti-social. This would then allow you at the end of this notice to put the matter into court but we will come on to the time periods that court will be dealing with this later in the article.
- Domestic Violence
The Government have now decided that you can give two weeks’ notice in the event of domestic violence. This should be quite easy to prove as there is normally a police report involved in this type of incident. But again however you would need to get into a court which we will come on to.
- Obtaining a tenancy through fraud
If the tenancy was obtained through fraud then you are entitled to give two weeks’ notice to end this tenancy.
- Immigration status cases
If there is a problem with the immigration status of the tenant then you should look into the right to rent before you even consider letting to a tenant then you can give three months’ notice. The right to rent is a much more complicated system but there is a Government website that enables you to click through what’s needed to ensure that you can rent to a tenant and this is now the law for every single tenancy.
- Rent arrears over six months
Where the rent arrears are over six months then the landlord is entitled to provide four weeks’ notice. This will be a relief to most landlords. As at least it ensures that at the end of the seventh month then in real terms you should be able to get your property back. There is no guarantee and you will need to go to court which we will come on to. We would suggest that you look at our article HERE about guarantors and rent guarantee schemes you may wish to consider
- How will the courts deal with evictions?
We are in constant communication with various solicitors in how the courts will deal with the eviction. The problem is that there is a major backlog already within the courts dealing with rent arrears. Landlords could face anywhere up to two years without rent depending on which court you apply for the order through and how much of a backlog they have. We understand from most solicitors that even if proceedings are issued in the court some of the hearings will not be for at least another six to nine months. If you cannot thus serve a notice until at least after the seventh month i.e. the date the notice would have finished it could leave you out of pocket for some considerable time.
All the above makes this difficult for landlords on what they need to do. They have to decide for themselves what they wish to do with the current tenants and what their long term plan is for the property. It is going to be so much harder in future for landlords to make decisions on their properties with the current guidelines that the Government are doing.
- What happens under the new rules regarding repossessions of property?
The Government has now outlined new court procedures designed to manage the significant backlog of possession cases when they start to resume of which the earliest was the 24th August.
Landlords are having to wait patiently for the courts to reopen to repossess their property now means that where they intend to restart or conduct proceedings there are new proceedings in place.
One of the main rules is that the court and defendant must be notified if prior applications for possessions made before the 3rd August 2020 are to resume. The landlord and/or agents does not have to submit a reactivation notice which is not yet clear how these court cases will continue.
Another measure within the new rules requires landlords and/agents to itemise arrears in writing as ideally part of the reactivation notice.
The landlord’s agent must also find out whether or not a tenant is shielding or is in a vulnerable basis which may prevent the case proceeding.
You must also check any relevant information about the defendant’s circumstances, including the effect of the pandemic on the defendant and his or her dependants, which will enable the court to have regard to vulnerability, disability and social security position.
There is no doubt that these rules will be continually updated and it is important, we believe, that solicitors should be instructed to deal with all the matters on your behalf.
What if my tenant has now gone onto housing benefit?
Where tenants have gone onto housing benefit as it used to be or some form of allowance from the Government the rules are even more complicated. This depends on what your local authorities’ regulations are in respect of rehousing people. It may not be something that you have to consider in your opinion but the local authority have a duty to immediately rehouse people upon service of either a Section 21 Notice and/or a Section 8 notice for arrears. The problem is that many councils ignore this new law and inform tenants to stay where they are until they have a bailiff’s eviction date. This will mean that it is unlikely that you will be able to get the property back if they do need this. It could mean that you could have the property not producing any form of income for some considerable time. But, if they go on to a housing allowance of some nature then the law is quite clear in that you are entitled to the housing part of the benefit that they receive.
It is something that you need to take up with your agent or alternatively to talk to the local authority who will be able to give you some advice on being able to move the payment from the tenant to yourself covering some of your arrears at the very least.
The eviction process for tenants is now becoming a minefield and will forever change over the next six to twelve months depending on what the Government intend to do. The changes can be almost immediate as the latest ones have shown and it is important that you take some legal advice in this regard.
This is why it is so important that you read our previous article about rent guarantee and guarantors who can always help in this instance. If you have a guarantor that you can contact and is having to pay rent for the tenants you will often find that they will then speak to the tenants direct with a view to having them leave the property on time rather than you having to go to a court to get an order for possession.
We do have legal expenses cover that could help and give you advice in this regard and a lot of your policies will cover you for this type of advice. It is normally a legal telephone helpline. Would always advise getting a solicitor or looking at your policy in this instance.