Proceedings against tenants

The rules of litigation against tenants has had a number of changes the last year which have made substantial changes to the ways in which residential and commercial landlords are able to remove a tenant from their property.

Leonie Savory, litigator at Tiger Law explains where we are at now and what is the current position in proceedings against tenants.

Residential proceedings

At the end of August 2020, the Government introduced further changes restricting the termination for residential leases under the Coronavirus Act 2020. These restrictions are in place until 31 March 2021.

Here are a brief outline in regards to various residential tenancies:

A landlord of an Assured Shorthold Tenancies (AST) must now give 6 months’ notice under Section 21 to terminate an AST for any notice served on or after 29 August.

A landlord of an Assured Tenancy may serve a section 8 notice under one the specified grounds.  However, the new Coronavirus Act 2020 has extended the majority of the statutory grounds to 6 months.

The relevant notice periods are set out below:

1. Grounds 8,10 and/or 11 – where rent is more than 6 months’ outstanding, at least 4 weeks’ notice must be given;
2. Grounds 7 (death of a tenant) or 7B (no right rent) – at least 3 months’ notice must be given
3. Grounds 14A (domestic violence and social landlord), 14ZA (riot conviction) 17 (false statement by the tenant) at least 2 weeks’ notice must be given.
4. Ground 7A (conviction, breach of injunction or closure order) – 1 months’ notice
5. Ground 14 (nuisance, annoyance, immoral or illegal use) – proceedings cannot start earlier than the date of the section 8 notice

Possession proceedings

Following the stay on evictions during the pandemic lockdown, the rules were relaxed in Sept 2020, it has been possible to issue new claims for possession of private rented property and to reactivate existing possession proceedings.

Whilst new claims and stayed claims can now be reactivated tenants continue to be protected from eviction for the duration of the current national lockdown. This protection will last until 21 February 2021 which means there will be a ban on the enforcement of possession orders until this date.  Exceptions to this new restriction is in cases where there are trespassers, nuisance or substantial arrears of rent.

Additional steps when bringing possession proceedings

A review date when the Court considers listing the claim for a substantive hearing.  The review date also provides an opportunity for the tenant to obtain free legal advice from the duty scheme advisor.

Cases are now listed in order of priority with cases involving rent arrears exceeding 12 months’ (or 9 months’ where that amounts to more than 25% private landlords’ rental income).

A landlord must now set out any knowledge which it has on the effect of the Coronavirus pandemic on the Defendant and dependants and provide an updated rent account.

Forfeiting commercial leases

From 26 March 2020, the ability to forfeit a commercial lease for non-payment of the rent was suspended pursuant to Coronavirus Act 2020.

You cannot evict your tenant at the moment until 31 March 2021.

However, forfeiture is not your only option, you are also able to;

1. Issue court proceedings for the breach of the lease to recover your losses, or even make the tenant insolvent.
2. For rental payments (rather than service charge or insurance) you can also utilise the CRAR method of seizing goods to the value of the debt owed.

Statutory demands to wind up a tenant company

The Government has now extended further legislation though to ban landlords issuing statutory demands between 1 March – 31 March 2021 where the tenant is unable to pay its debts due to the impact of Covid.

With the changes to the legislation, mainly in respect to Covid, it is important that you understand your tenants’ rights as well as your own, and what options that are available to you should you need to take control of your property.