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 Tenants

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”) 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 your Landlord tries to commence new possession proceedings they will probably be stayed on issue until 25 June 2020. Your Landlord 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 legal obligation to pay your Landlord rent which is due under your lease or tenancy. 

This means that from 26 March 2020 until 25 June 2020 and regardless of whether you are an individual or a Company:-

  1. if your Landlord has an existing order for possession which has not been executed before 26 March 2020 they cannot enforce it until after 25 June 2020;
  2. if your Landlord started possession proceedings before 26 March 2020 those proceedings have now been stayed pursuant to PD51Z until after 25 June 2020;
  3. if you apply 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.

Yes, your Landlord 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

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

 

 

 

 

Yes, your Landlord 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

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

Yes, your Landlord 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

Your Landlord must give you a minimum of 3 months clear notice. 

Please remember that before your Landlord serves a Section 21 Notice they need to have satisfied all the other requirements relating to protecting the deposit serving Prescribed Information about the deposit scheme, giving you copies of a valid Gas Certificate, valid EPC and the Government Booklet “How to Rent”.

If your Landlord has not protected the deposit or served the Prescribed Information about it or given you copies of the above-mentioned documents they will need to remedy those failures before they serve the Section 21 Notice by either paying the deposit back to you or by securing it in a Government backed scheme and sending you the Prescribed Information as well as copies of the stated documents.  

It is important that you bear in mind that if your Landlord has not complied with the rules about deposits or serving the copy documents the court will not make an order for possession against you. You 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 your Landlord failing to recover possession under Section 21 and having to pay your legal costs of any possession proceedings.

From your point of view you therefore need to check the notice carefully to see if you can challenge it on a technicality but remember that in some cases the court can dispense with the need for a valid Section 8 Notice when the Landlord is relying upon particular grounds in Schedule 2 of the Housing Act 1988.

 

 

If your Landlord has not served a proper Section 8 or Section 21 Notice, you do not need to take any action and you should not say anything to them to alert them to the fact that the notice may be defective as they will be able to remedy the matter by serving a fresh and valid notice.

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

The second date is one of the most important details to be included in the notice.  If your Landlord gets that wrong any possession proceedings which they bring at a later date may be struck out by the court with an order that your Landlord has to pay your legal costs.  That can be a very expensive mistake for your Landlord to make.

Your Landlord needs to calculate the second date by having regard to the following. 

The notice needs to be formally served upon you.  Your tenancy agreement usually stipulates how your Landlord should serve such notices and you need to check the agreement to make sure that your Landlord complies with it when serving any notices on you.  If the agreement does not clearly stipulate how your Landlord must serve the Section 8 Notice, then your Landlord should serve it by handing it to you in person - this is called “personal service”.  Your Landlord can also get a process server to do this on their behalf. If you avoid personal service, there are other ways of serving a notice such as putting it through your letterbox.  Your Landlord can also post the notice to you. These latter two means of service are less preferable as you might be able to argue at a later stage that you had not received the notice, but you could not allege that unless you had not actually received the notice.  If your Landlord knows and can give evidence to the court that they handed the notice to you then that is likely to be accepted by the court.

For this reason the preferred method of service by Landlords is personal service. 

Your Landlord then needs to complete a certificate of service and they will probably use the following prescribed form suitably adapted to include your and your Landlord’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 your Landlord hands the document to you or leaves it at the premises by putting it through the letterbox provided your Landlord does 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 your Landlord serves the notice on a Friday before 4:30 pm it will be deemed served on that Friday.  If your Landlord serves 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 Landlord’s notice is dated 15 April 2020 and they hand it to you 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 you had not received the full three months notice.  In this case your Landlord could have stipulated a “second date” of, say, 16 July 2020, but it is not worth them taking a risk for the sake of a couple of days here or there. 

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

You therefore need to think about whether you can complain to your Landlord about the state of repair of the Property or if the Property is not fit for human habitation.

If your Landlord issues 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 your Landlord can take against you or your 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 you/your guarantor if you want to delay matters. Ultimately, if you/your guarantor do not want to pay your Landlord or you have not got the money to pay your Landlord or you are on the verge of bankruptcy or liquidation, then your Landlord may have to write off some or all of the rent arrears and wait to get the Property back.

Your Landlord can take the following steps:-

  1. If it suits your Landlord, try to reach an agreement with you/your guarantor which takes account of your financial circumstances and set in place a payment plan for any rent arrears;
  2. Inspect the Property in accordance with their rights under the Lease or tenancy upon giving proper notice to the tenant – they would do this if you complained about the state of the Property;
  3. Trigger any Rent Review;
  4. Send a Letter of Claim to you/your guarantor demanding payment of the arrears, other sums due and interest at the rate stated in your lease and give you/your guarantor 14 days to pay;
  5. If you/your guarantor do not pay within 14 days of your Landlord’s Letter of Claim, your Landlord could use Money Claims Online to issue a claim against you/your guarantor for the arrears, other sums due and interest as well as legal costs;
  6. If you/your guarantor are individuals and your Landlord obtains a judgment against you/your guarantor this will affect the credit rating of you/your guarantor if you/your guarantor don’t satisfy any judgment within 31 days;
  7. Use a Rent Deposit, but you need to ensure your Landlord complies with the terms of any Rent Deposit Deed;
  8. Serve a Statutory Demand on you/your 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 you seeking to reach agreement with your Landlord. 

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 Landlord is adjudicated bankrupt or goes into liquidation so that you can protect your occupation of the Property.

If you/your guarantor become adjudicated bankrupt or your Company goes into liquidation, then a Trustee in Bankruptcy, a Liquidator or the Official Receiver (“office-holder”) will be appointed to manage the process.

If you/your guarantor become adjudicated bankrupt or go 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 into the name of your Landlord. The disclaimer process can be triggered by the officer-holder or your Landlord can write to them and ask them to disclaim their interest in the tenancy. 
Your Landlord may be able to bring possession proceedings against you under the terms of your tenancy agreement but any proceedings would not be dealt with before 25 June 2020. 
You/your guarantor could also apply for an Individual/Company Voluntary Arrangement to avoid going into bankruptcy/liquidation.
If you/your guarantor are an individual you could seek a Debt Relief Order (“DRO”) if your debts are no more than £20,000 which is similar to bankruptcy. If you/your guarantor get one:

  1. Your Landlord cannot recover any arrears of rent without the court’s permission from you/your guarantor;
  2. You/your guarantor are usually freed (‘discharged’) from your debts after 12 months and
  3. The DRO remains on your/your guarantor’s credit records 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 disclaims your tenancy or your Landlord ends your 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 your Landlord responds to and carries out any repairs which are their duty under the tenancy agreement and pursuant to Sections 8, 9A or 11 of the Landlord & Tenant Act 1985.

If your Landlord does not deal with their  duty to carry out repairs or to ensure that the premises are fit for human habitation, you will be able to bring claims against your Landlord  which will not be affected by the PD51Z Stay. Such claims could result in your having to pay back a percentage of the rent paid while any disrepairs were occurring. Your Landlord could also be ordered by the court to carry out repairs at their own expense. In addition your Landlord would also be liable for your legal costs of any successful claim.

No.

If you want to give the Property back before the tenancy expires you need to get your Landlord to sign a Deed of Surrender, which should also record any agreement about payments for any arrears of rent or future rent. You should try to get your Landlord to agree that you will owe no further sums for rent from the date you give back the keys of the Property.

It is also preferable if a solicitor acts for you in relation to any Deed of Surrender.

If you are giving the Property back after the tenancy has expired, make sure you get your Landlord to sign (and witness) a document to confirm the time and date when the keys were handed over to your Landlord and you formally gave back possession to your Landlord. 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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