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Can Landlords Evict Tenants During COVID?

It goes without saying that it is difficult to understate the difficulty many face as a result of the coronavirus crisis. Whilst recent months have seen the government intervene with measures to remedy the sudden loss of income many are experiencing, dramatically reducing their exposable income and ability to meet rental payments, the effects of the virus are undeniable. However, even after a nationwide rollout of a furlough scheme, the economic outlook for many remained bleak, with mass job losses and uncertain income contributing to over 460,000 tenants accumulating rental arrears since the outbreak.

Findings reported from UK Charity Stepchange also detailed that since the introduction of the UK lockdown in March 2020, 19 million adults, or almost 40% of the nation has experienced a reduction in the amount earnings they receive, placing a devastating 150,000 renters in the precarious position of possibly facing eviction.

Advice from the government in this time has remained consistent, largely relying on an understanding and communication between both parties of the tenancy, asking landlords to be more forgiving of those that begin to miss rental payments, instead negotiating a payment plan that works in the interest of everyone.

However, this unfortunately cannot always be the case and some property owners may feel compelled to remove a problem tenant from their rental.

When Can Landlords Evict During COVID-19?

The Coronavirus Act 2020 brought with it a series of changes to the traditional eviction process, offering those that choose to rent additional protection throughout one of the most financially trying times in recent history. Essentially if a landlord is looking to remove a tenant from a property and begin the eviction process, they must first supply the appropriate tenant with apple notice. The act demands that landlords now provide a far greater period of notice before beginning the eviction procedure than what was previously asked.

For any landlords that issued possession or eviction orders to tenants between the 26th of March and the 28th of August 2020, a notice period of 3 months will have been required. In an effort to increase the support offered to the rental community as the impact of the COVID crisis has become more realised, the UK government has periodically extended the amount of notice required to be given by landlords. Notices that are issued from the 29th August 2020 to the 31st May 2021 are only valid if the landlord first gave the tenants of the rental property six months’ notice before proceedings commence.

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With this being said there is still some exceptional circumstance under which a landlord is able to remove a problem tenant early. If the problem tenant in question is consistently behaving in an antisocial manner, causing alarm in regards to domestic abuse, or involved in acts of rioting, then the landlord will be able to expedite the removal process, with the time periods for the amount of notice required to be given to tenants returning to that of pre Coronavirus status. Additionally, if the landlord has issued the tenant with a section 21 notice of eviction and the tenant has accumulated in excess of 6 months rental arrears, then once again the notice required to be given the tenant is reduced to only four weeks.

Whilst these radically divisive measures implemented by the government were initially pegged to be enforced until March 2021, in the same month it was declared that the protection offered to tenants will be extended until the 31st May 2021. However, for landlords hoping this date will bring a certain end to the measures may be left disappointed as the government continues to reassess the best approach in tackling the impact of the virus.

Section 8 or, Section 21 Notice?

Both the section 8 and the section 21 notices only apply when a tenants has entered into an assured Shorthold tenancy with the occupants of the rental property. Whilst it could be argued that a section 21 notice is viewed more favourably by landlords looking to rid themselves of problem tenants due to its effectiveness, the ‘best’ possession order to serve is dependent on the nuances of your rental situation.  

When requesting a section 8 eviction notice landlords must first complete a “notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy”. The application must then further explain the specific grounds under which the landlord believes the terms of the tenancy agreement has been violated. The justifications landlords typically use for these notices are outlined in schedule 2 of the Housing Act 1988.

Under ground 8 of the act, any amount that is lawfully due from the tenants is considered as rent, with two months of unpaid rent justifying these grounds, if the tenant typically pays each month, or ever week. Ground 8 further established the threshold for tenants that pay their rent quarterly and annually at 3 months’ rent.  When establishing a case against the tenant with a section 8 notice, the property owner will rely on grounds 10 and 11 in consideration to any rental arrears the tenant may have accumulated during the tenancy period.

These additional grounds aid the landlord in stipulating that; “some rent lawfully due from the tenant is unpaid on the date on which the proceedings are begun”; and with some limited exceptions, where the tenant “was in arrears at the date of the service of the notice under that section relation to those proceedings.” This ground for possession by the landlord through missing rent is further enforced through the addition of ground 11 of the 1988 Housing Act, which details that the amount that the occupants of the rental property have accumulated in rental arrears is irrelevant, rather that the tenant has proven to be consistently late with their due rental payment despite this being stipulated in the tenancy agreement. Landlords have also been known to implement ground 12 where a tenant has been in clear breach of the terms of the tenancy agreement, however grounds regarding malicious damage to the rental property, or anti-social behaviour to be upheld.

Section 21 Notice

Unlike a section 8 notice, a section 21 notice of eviction is not looking to evict the tenant on the basis of any wrongdoing or breach of the tenancy agreement. Instead a section 21 is providing the tenant with notice of the landlord’s intent to reclaim the property once the fixed term tenancy agreement come to an end, or alternatively, the landlord and tenant reach a mutual agreement to end the tenancy period early through a break clause. As the landlord is simply notifying the tenant they wish to reclaim the property once the rental has been vacated, the landlord does not need to offer any reasoning or justification for serving the section 21 notice.

However, there are a few potential hindrances to the process, as The Deregulation Act 2015 introduced changes to how a section 21 notice can be implemented. Traditionally section 21 notices will expire after a given period, before the COVID crisis this would have been six months; if the landlord still wishes to pursue a possession order once this period have come to an end they will need to issue an additional notice to the tenant. Additionally if the landlord has failed to provide the tenant with an energy performance certificate, gas safety certificate or ‘how to rent’ guide at the beginning of the tenancy period then a section 21 order will not be upheld. Similarly the landlord is also obliged to address any issues brought to their attention regarding the condition of the property. If the tenant highlights a landlord’s failure to address issues with the rental property and a section 21 notice is served, it will once again fail to yield the desired results for the landlord. Landlords must also be aware that they are unable to issue tenants with a section 21 notice during the initial 4 months of the tenancy period; however, if this is a renewed tenancy with an existing occupant then a possession order may still be issued.

Likewise, if the landlord has failed to repay any sums that were unlawfully charged, return the full deposit amount (assuming the rental property was returned in the same condition in which it was first let out) or, if the landlord neglected to secure the tenant’s deposit in an approved deposit protection scheme then a section 21 notice cannot be issued. Similarly landlords are also prevented from serving the notice if the property is regarded as a house in multiple occupation or HMO, or if the local council has served an improvement or emergency work notice on the property in the last six months.

What if the Tenant Refuses to Leave the Property?

If the landlord has submitted a section 21 notice and the tenant refuses to vacate the property by the agreed date the property owner is able to apply for an accelerated possession order. Whilst this may allow landlords to undergo a more streamlined and direct approach to eviction, with a reduced chance of their being a court hearing for the notice, it does come at a cost. With each accelerated possession order setting the landlord back £355, for the order to be upheld the property owner must have a written tenancy agreement and not be claiming any unpaid rent. Once the fee is paid to the court the landlord will be required to complete a N5B form detailing the accelerated possession order. This order will then be communicated to the tenant by the courts allowing them a 14 day period in which to appeal the order; if the tenant proceeds to file an objection to this move it is likely that proceedings will move into court. If successful, after the expiration of the accelerated order, if the tenant has still refused to vacate the property then the landlord will unfortunately have to turn to the county court bailiffs; a process that could take another 6 weeks.

However, if the landlord instead opted to implement a section 8 notice of eviction and the case proceeds to court, in some cases the judge may grant that a county court bailiff is not sufficient. In these instances the judge will allow leave through Section 42 of the County Court Act 1984, accelerating the possession order to high court and removing the problem tenant far faster than the bailiff.

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Periodic Tenancies

If the agreed upon tenancy period has come to an end then the fixed term tenancy agreement is considered “periodic” providing the tenant remains in the property. If the tenant is currently in a periodic or, rolling tenancy the agreement will automatically renew each month, allowing the tenant to stay in the rental after the initial fixed term has expired. In these instances, or simply when the fixed term tenancy period has come to an end landlords and property owners will find the process of reclaiming their property from problem tenants far easier, being devoid of the lengthy wait times associated with evictions in traditional tenancy agreements. If the landlord was to serve a section 21 notice to a tenant in a rolling agreement their notice to vacate the property must be the same length of time for which they are charged; therefore if they pay rent every month, the landlord will be expected to provide the tenant will at least one months’ notice of the repossession.  

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