Call now: 0208 866 6464
Existing clients tel: 0208 866 6464

The Sethi Partnership Solicitors

The Barn House, 38 Meadow Way,
Eastcote, Ruislip, Middlesex
England, HA4 8TB

info@sethi.co.uk

Call now: 0208 866 6464
Existing clients tel: 0208 866 6464

The Sethi Partnership Solicitors

The Barn House, 38 Meadow Way,
Eastcote, Ruislip, Middlesex
England, HA4 8TB

info@sethi.co.uk

Coronavirus: Briefing for Residential Landlords

In this briefing, we answer 10 important questions for residential landlords during the current Coronavirus Crisis.

Get in touch with us today on 0208 866 6464 or fill out our online enquiry form

The Government has introduced a new law to give tenants additional protection from eviction. Landlords must now give at least three months notice when informing tenants that they intend to seek possession of residential premises on any date from 26 March until 30 September 2020 (“relevant period”).  The new law is contained in Schedule 29 of the Coronavirus Act 2020 (“2020 Act”) which can be found at: -

http://www.legislation.gov.uk/ukpga/2020/7/schedule/29/enacted

In addition to Schedule 29 of 2020 Act the Civil Procedure Rules (“CPR”) have been changed (“PD51Z Stay”) to decree that all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed until 25 June 2020. Existing possession proceedings are automatically stayed until 25 June 2020, without the need for a court order. If you try to commence new possession proceedings they will probably be stayed on issue until 25 June 2020. You won’t be able to enforce an existing possession order by execution of a writ or warrant until 25 June 2020.

The PD51Z Stay applies to all claims for possession of residential premises

The PD51Z Stay ends on 25 June 2020 unless it is extended by the courts

Neither the Schedule 29 change nor the PD51Z Stay change your tenant’s legal obligation to pay you rent due under your lease or tenancy.

This means that from 26 March 2020 to 25 June 2020 and regardless of whether your tenant is an individual or a Company

  • If you have an existing order for possession which has not been executed before 26 March 2020 you cannot enforce it until after 25 June 2020
  • If you started possession proceedings before 26 March 2020 those proceedings have now been stayed pursuant to PD51Z until after 25 June 2020
  • If a tenant applies to vary a possession order which was made prior to 26 March 2020, that application is unlikely to be heard until after 25 June 2020. It is likely that there will be a backlog of cases after 25 June 2020 and much will depend on whether the Government extends Schedule 29 or the Courts extend the PD51Z Stay whether the Government extends Schedule 29 or the Courts extend the PD51Z Stay.

 

Yes, you can still serve a Section 8 Notice but to be valid the notice must be in the new prescribed form of Section 8 Notice which can be found at: –
https://www.gov.uk/guidance/assured-tenancy-forms#form-3

You can rely upon either of Grounds 8, 10 or 11 in Schedule 2 of the Housing Act 1988 but no matter what ground you rely upon you must give a minimum of 3 months clear notice. 

 

 

 

 

Yes, you can still serve a Section 8 Notice but to be valid the notice must be in the new prescribed form of Section 8 Notice which can be found at: –
https://www.gov.uk/guidance/assured-tenancy-forms#form-3

You can rely upon whichever ground in Schedule 2 of the Housing Act 1988 is relevant to the case but no matter what ground you rely upon you must give a minimum of 3 months clear notice. 

 

Yes, you can still serve a Section 21 Notice but to be valid the notice must be in the new prescribed form of Section 21 Notice which can be found at: –

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876592/200324_Form_6A__1_.pdf

You must give a minimum of 3 months clear notice. 

Please remember that before you serve a Section 21 Notice you need to have satisfied all the other requirements relating to protecting the deposit, giving your tenant the Prescribed Information about the deposit scheme, as well as giving them copies of a current Gas Certificate, a valid EPC and a copy of the Government Booklet “How to Rent”.

If you have not protected the deposit, given the tenant the Prescribed Information or copies of the above-mentioned documents you will need to remedy those failures before you serve the Section 21 Notice by either paying the deposit back to your tenant and by securing it in a Government backed scheme or sending the Prescribed Information and the copy documents to your tenant.

It is important that you bear in mind that if you have not complied with the rules about deposits the court will not make an order for possession in your favour. Your tenant will also be entitled to apply to the court for compensation of between one and three times the amount of the deposit. Failure to protect the deposit can be an expensive mistake and can also result in you failing to recover possession under Section 21 and having to pay your tenant’s legal costs of any possession proceedings. 

 

 

The notice contains two important dates.  The first is the date on which you sign the notice (“first date”). The second is the date after which you are notifying your tenant that you will start possession proceedings (“second date”).  

The second date is one of the most important details to be included in the notice.  If you get that wrong any possession proceedings which you bring at a later date may be struck out by the court with an order that you have to pay your tenant’s costs.  That can be a very expensive mistake to make.

You need to calculate the second date by having regard to the following. 

The notice needs to be formally served upon your tenant.  Your tenancy agreement usually stipulates how you should serve such notices and you need to check the agreement to make sure that you comply with it when serving the notice.  If the agreement does not clearly stipulate how you must serve the Section 8 Notice, then you should serve it by handing it to your tenant in person - this is called “personal service”.  You can also get a process server to do this on your behalf.  There are other ways of serving a notice such as putting it through the tenant’s letterbox.  You can also post the notice to them. These latter two means are less preferable as the tenant might argue at a later stage that they did not receive the notice.  If you know and can give evidence to the court that you handed the notice to your tenant then that is likely to be accepted by the court. We therefore recommend that personal service is used in all cases. 

You then need to complete a certificate of service and we recommend that you use the following prescribed form suitably adapted to include your and your tenant’s details: –
https://www.gov.uk/government/publications/form-n215-certificate-of-service

Once the notice has been served properly the court will work out what is the date of “deemed service”.  In the case of personal service the date of deemed service is the day on which you hand the document to your tenant or leave it at the premises by putting it through the letterbox provided you do this before 4:30 pm on a business day.  If the document is served on a non-business day then it will be deemed to have been served on the next business day thereafter.  For example if you serve the notice on a Friday before 4:30 pm it will be deemed served on that Friday.  If you serve it after 4:30 pm on that Friday, it will be deemed served on the following Monday. 

The “second date” should be must at least three calendar months after the date of “deemed service”. 

Let’s take an example. Your notice is dated 15 April 2020 and you hand it to your tenant on that same date before 4:30 pm. We recommend that the “second date” stipulated in the notice should be no earlier than 18 July 2020 so as to avoid any arguments that the tenant has not received the full three months notice.  In this case you could have stipulated a “second date” of, say, 16 July 2020, but it is not worth taking a risk for the sake of a couple of days here or there.

You need to take care that your tenant has not complained about the Property to you or to the local housing authority as this could make your claim for possession liable to be dismissed on the ground that it is a “revenge eviction”, which has been taken in response to a valid complaint from the tenant or the issue of an Improvement Notice by the authority.

Please bear in mind that you will need to pay a court fee of £355 to start a possession claim. You must start the claim in the right court for the area in which the Property is located and bear in mind that some of the court are not staffed at present, so contact the court before issuing any claim to make sure it will be processed. 

If you issue proceedings before 25 June 2020 they will probably be stayed until that date, which means nothing more will happen until after that date. It is likely that there will be a backlog of cases after 25 June 2020 and much will depend on whether the Government extends Schedule 29 or the Courts extend the PD51Z Stay.

Yes, there are a number of steps you can take against your tenant or their guarantor which could result in any arrears of rent being paid. However some of these steps are expensive and time-consuming and can be drawn out by the tenant/guarantor if they want to delay matters. Ultimately, if the tenant/guarantor does not want to pay you or has not got the money to pay you or is on the verge of bankruptcy or liquidation, then you may have to write off some or all of the rent arrears and wait to get the Property back.
You can take the following steps:-

  1. If it suits you, try to reach an agreement with your tenant/guarantor which takes account of their financial circumstances and set in place a payment plan for any rent arrears;
  2. Inspect the Property in accordance with your rights under the Lease or tenancy upon giving proper notice to the tenant;
  3. Trigger any Rent Review;
  4. Send a Letter of Claim to your tenant/their guarantor demanding payment of the arrears, other sums due and interest at the rate stated in your lease and give the tenant 14 days to pay;
  5. If the tenant/guarantor does not pay within 14 days of your Letter of Claim, you can use Money Claims Online to issue a claim for the arrears, other sums due and interest as well as legal costs;
  6. If your tenant/guarantor is an individual and you obtain a judgment against them this will affect their credit rating if they don’t satisfy any judgment within 31 days;
  7. Use a Rent Deposit, but you need to ensure you comply with the terms of any Rent Deposit Deed;
  8. Serve a Statutory Demand on your tenant/guarantor if the amount of overall debt is at least £5,000 in the case of an individual (or £750 in the case of a Company)  – that is the first step towards bankruptcy/liquidation and may trigger a response from the tenant seeking to reach agreement with you. 

This is a very technical area of the law which cannot be properly summarised in a short document such as this and so the following are rough guidelines. We recommend that you take legal advice if your tenant is adjudicated bankrupt or goes into liquidation so that you do not lose out on time and rental income for longer than is necessary.
If your tenant becomes adjudicated bankrupt or goes into liquidation, then a Trustee in Bankruptcy, a Liquidator or the Official Receiver (“office-holder”) will be appointed to manage the process. In that process tenancies can become vested in the office-holder if they serve certain notices on you and they can then “disclaim” the tenancy which means the Property should come back to or vest back in you. The disclaimer process can be triggered by the officer-holder or you can write to them and ask them to disclaim their interest in the tenancy.
The tenant could also apply for an Individual/Company Voluntary Arrangement to avoid going into bankruptcy/liquidation.
If the tenant is an individual they could seek a Debt Relief Order (“DRO”)  if their debts are no more than £20,000 which is similar to bankruptcy. If the tenant gets one:

  1. You cannot recover any arrears of rent without the court’s permission and
  2. The tenant is usually freed (‘discharged’) from their debts after 12 months and
  3. The DRO remains on their credit record for 6 years. 

If you consider you may become bankrupt or go into liquidation then you should seek legal advice. If you are adjudicated bankrupt or your Company goes into liquidation your tenant will be able to stay in the Property until any office-holder dealing with your estate or liquidation either sells the Property or ends the tenant’s tenancy in the normal way and subject to the limitations which apply as a result of Schedule 29 and the PD51Z Stay. 

Yes, it is vitally important that you respond to and carry out any repairs which are your duty under the tenancy agreement and pursuant to Sections 8, 9A or 11 of the Landlord & Tenant Act 1985.

If you do not deal with your duty to carry out repairs or to ensure that the premises are fit for human habitation, the tenant will be able to bring claims against you which will not be affected by the PD51Z Stay. Such claims could result in you having to pay back a percentage of the rent paid during the period when any disrepairs were occurring and may be continuing. The amount of this compensation depends on the severity of any breaches committed by you and the facts of the case. You could also be ordered by the court to carry out repairs at your own expense. In addition you would also be liable for the costs of any successful claim.

No.

If your tenant is giving you back the Property before the tenancy expires you need to get them to sign a Deed of Surrender, which should also record any agreement about payments for any arrears of rent or future rent.

It is also preferable if a solicitor acts for your tenant in relation to any Deed of Surrender.
If they are giving the Property back after the tenancy has expired, make sure you get them to sign (and witness) a document to confirm the time and date when the keys were handed over to you and they formally gave back possession to you. We suggest you also take some digitally dated photographs on your smart phone or other device to record the handover.

Contact our Landlord and Tenant solicitors in Ruislip, Middlesex

To discuss your commercial landlord and tenant matter, call The Sethi Partnership Solicitors today on 0208 866 6464 or complete our online enquiry form .

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

 

 

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