This Q&A covers the main issues that appear to be arising in both Commercial and Residential scenarios involving Landlords, Tenants and Lodgers during the COVID-19 pandemic restrictions. These are presently in force until at least 30 September 2020 but could be extended. However, every case can be fact sensitive and so it is always recommended that independent advice be sought.
The Government’s overriding guidance – overview
The main principals of guidance supplied by the Government during these exceptional times seeks to preserve and ensure the health, safety and wellbeing of the public. This is particularly relevant in the context of taking steps to evict tenants during the pandemic, at a time when the Government has imposed “stay at home”, isolation and social distancing measures.
The underlying request by the Government, now set down in law, is that Landlords are strongly advised not to commence new notices seeking possession during this time without there being a very good reason to do so. For this reason, notice periods have been extended by 3 months, most existing and new possession claims have been suspended for 90 days, and applications or dates for the execution of bailiff warrants have similarly been suspended.
Similarly, Landlords and Tenants are being encouraged to work together to achieve mutually acceptable resolutions where any difficulties arise, taking into account the exceptionality of COVID-19.
Q. Rental payments – does my tenant/ do I as the tenant still have to pay my rent during the restrictions?
A. Tenants are expected to, and should continue comply with their contractual terms of tenancy to include paying their rent to the best of their ability and as normal. If your tenant/you as a tenant encounters difficulty in paying rent because of the pandemic (for example, through job loss), a dialogue between Landlord and Tenant is encouraged to work out how to resolve this and Landlords are being encouraged to “offer support and understanding” to tenants who suffer a fluctuation in income.
Q. Mortgage Payments – I am a Landlord and I am in difficulty paying my mortgage?
A. Landlords/home owners are encouraged to contact their mortgage providers at the earliest opportunity. Many mortgage providers are offering mortgage holidays during this time of up to 3 months. It should be noted however that the interest will continue during this time.
Q. Repairs – my tenant has reported/I am a tenant who has reported the need for repair, can these be carried out?
A. Landlords are expected to and should continue to comply with their contractual and statutory obligations to keep property in repair and to carry out those repairs within a suitable period of notice based on urgency, but during the pandemic, a pragmatic and common sense approach must be adopted by Landlord, Tenant and any contractor in carrying out repairs in exercising hygiene, cleanliness and distancing should any repairs need to be carried out within a tenanted property. Particularly, if tenanted by a vulnerable person.
It is suggested that a common sense approach be adopted for minor, non urgent repairs.
However, urgent repair work required to ensure the safety of tenants should apply the above recommendations of pragmatic, practical and safe practice to ensure everybody’s safety. We at Wollens can assist with helping you to determine what is and isn’t urgent and how that could be effected.
Q. Gas /Electrical Safety Certificates – the GSC has expired and I need to renew it?
A. As with repairs, during the pandemic, a pragmatic and common sense approach must be adopted by Landlord, Tenant and any contractor in carrying out any certificate renewals by exercising hygiene, cleanliness and distancing should any repairs need to be carried out within a tenanted property. Particularly, if tenanted by a vulnerable person.
Q. I need to recover possession of my property and I want to serve a notice. Can I still do this?
A. If a Landlord served a Notice before 27.03.2020, the usual expiry periods will apply. However, see below if the tenant has not already vacated the property.
However, if a landlord has, after 27.03.2020, or wants to serve a new notice upon a tenant (subject to the timing of service under the tenancy agreement), then Practice Direction 51ZA requires that the notice must be for a minimum period of 3 months. Wollens can assist with helping Landlords to determine whether a notice can be served, and to advise on the service of a valid notice.
Q. I have served a notice seeking possession upon my tenant (s.8/.s21) – do they still have to leave when it expires?
A. Presently, the Government has advised the public to delay, for at least 90 days, any move from their property to other property.
If a tenant does not leave the property before the expiry of the notice, a Landlord must then apply to Court for an Order for possession, and then a bailiff warrant. It is a civil and criminal offence for a Landlord or its agent to force a tenant out of property, which is reserved to Court authorised bailiffs and only then on authority of a bailiff warrant of eviction.
If a tenant does not leave, the Landlord will have to apply to the Courts. However, in the current pandemic, Landlords and Tenants are being asked to work together to observe the “stay at home”, self distancing measures.
Q. The notice I have served/received has already expired and the tenant has not/I have not left – what happens next?
A. As above, If a tenant does not leave the property before the expiry of the notice, a Landlord must then apply to Court for an Order for possession, and then a bailiff warrant. However, the Corona Virus Act 2020 has suspended all new and existing claims for possession for a period of 90 days, extendable by secondary legislation. This means that if you have already issued your claim for possession, the Court is likely to adjourn those proceedings for at least 90 days, if it has not done so already.
Q. I already have a Possession Order. Can I/can my Landlord still apply for a Bailiff Warrant of Eviction?
A. From 26.03.2020 the Courts are suspending all possession claims for at least a 90 day period and this includes eviction stages. This is a step that has been taken to prevent placing the public at risk during this time and to ensure and preserve as far as possible the health safety and wellbeing of the public.
Q. I am a lodger / I am a live in landlord with a lodger. I need to evict my lodger/my Landlord is trying to evict me. Can I still do this during COVID-19?
A. There is currently no guidance relating to the position during the pandemic on evicting lodgers / excluded occupiers as defined by section 3A Protection from Eviction Act 1977. However the Government is asking Landlords to exercise the same guidance that has been provided for Landlord and Tenant relationships on serving notices, and/or seeking possession and/or evicting, without a very good reason to do so. The Corona Virus Act 2020 has however amended the legal period of a notice to quit under s.5 of the Protection from Eviction Act 1977, from 4 weeks to 3 months. Wollens can provide further, tailored advices to both live in Landlords and Lodgers on this point.
Q. I was in the process of selling my property – can I still conduct viewings?
A. The main guidance supplied by the Government during these exceptional times seeks to preserve and ensure the health, safety and wellbeing of the public at a time when the Government has imposed “stay at home”, isolation and social distancing measures.
The public is also being asked not to carry out any non essential travel.
Q. I was just about to move house – can I still move?
A. Presently, the Government has advised the public to delay, for at least 90 days, any move from their property to other property. The Government has also strongly advised against any non-essential travel at this time, and/or of long distances.
Wollens’ Dispute Resolution Team has kept up to date and focused on the fast developing changes and legal instruments being enforced during this pandemic. If you are a Landlord or Tenant or Lodger of either Commercial or Residential Property and require advices about any of the issues above, or any issues that have not have been covered above, Wollens is prepared to assist.
Contact us on [email protected] and one of our specialists will be happy to get in touch with you.
Information correct at time of publication 16/04/2020
(1) The Corona Virus Act 2020 enacted 25.03.2020 and in force 26.03.2020
(2) MHCLG Guidance for Landlords and Tenants March 2020
(3) Practice Direction 51Z and 51ZA and
(4) 117th Civil Procedure Update