Cavendish: Landlords must understand recent legal changes around possessions

According to Cavendish Legal Group, the Coronavirus Act 2020 brought into effect some legal changes that landlords and their brokers may not be aware of when undertaking possession proceedings. 

Jonathan Frankel, litigation partner at Cavendish Legal Group, said that pre-COVID, regaining possession of property could be done by either serving a section 8 (s.8) or section 21 (s.21) notice under the Housing Act 1988.

However, there are now more restrictions to be aware of, such as taking into account the impact of the pandemic on tenants’ circumstances.

Landlords invest £839m a year upgrading new rental property

Frankel said: “The pandemic has left many people unemployed, furloughed on reduced pay or even having to wind up their businesses.

“As such, many have been financially impacted and this is something the Court is required to take into account when considering any possession claim regardless of notice route or ground.

“There is also the new practice direction 55C (PD55C) under the Civil Procedure Rules in support of the Coronavirus Act 2020 to consider, which has recently been amended to remain in force until 30 July 2021.

“However, there is some relief offered to those who first brought a possession claim before 3 August 2020 in that a landlord can issue a reactivation notice before April 2021.

“Any claim brought after 3 August 2020 must use the accelerated procedure and file proceedings using a claim form.”

Another change has been the length of notice landlords must give on a s.21, and s.8, which must be at least six months, if given after 29 August 2020.

Frankel said: “While appreciating the genuine difficulties faced by tenants, it can also be a huge financial impact for the landlord where tenants are not paying rent or continue to damage the property, to have six months’ notice to work through.”

The main issue for a landlord, regardless of when they first issued their possession claim, is that they must now provide a notice setting out the knowledge that they have as to the effects of COVID-19 on the defendant tenant and their dependants.

Frankel said: “This is why it’s important to work with a specialist firm of solicitors which can assist landlords at all stages of possession proceedings.

“It is key in helping identify the strongest ground to argue, understanding the formalities of serving notices and what next steps are available to you since the introduction of COVID-19 legislation to have that expertise onside.

“But at the same time, landlords should not lose all hope in being able to take possession back of their properties, as the Court will also take into account the impact the landlord has experienced due to the pandemic.

“For example, where a tenant is not paying rent and this is a key source of income for a landlord to be able to afford their own homes, it has to be considered by the Court.”