This note sets out how the Coronavirus Act 2020 (“the Act”) affects both business and residential tenancies taking into account the Governmental advisory guidance to help understand the implications of the Act.
As the situation is subject to change, the Government urges all landlords and tenants to abide by the latest Government guidance on COVID-19, which can be found here.
Landlords cannot evict business tenants on the grounds of non-payment of rent whilst the Coronavirus emergency continues. This currently applies from 26 March to 30 June 2020 (“the relevant period”) unless subsequently extended.
Forfeiture for non-payment of rent
During the relevant period the landlord cannot enforce a right of re-entry for non-payment of rent (the definition of rent includes service charge and insurance premium), whether by peaceable re-entry or in court proceedings. To protect the landlord’s position, the right of re-entry can only be waived during the relevant period by an express waiver in writing. These provisions do not apply to any other type of breach of covenant.
Where forfeiture proceedings for non-payment of rent are already on foot, the court cannot make an order for possession which expires before the end of the relevant period. In some cases the court will have made an order for possession which only takes effect if the tenant fails to do something (e.g. pay the arrears or instalments) by a certain date. In the High Court, if the tenant applies to vary the order the court must ensure that the tenant does not have to give possession before the end of the relevant period. In the County Court, the period during which the tenant has to pay cannot be before the last day of the relevant period (as in force at the date of the order). For existing orders, the period within which the tenant must pay the arrears is automatically extended to the end of the relevant period.
Opposing the grant of a new tenancy on the grounds of persistent delay in paying rent
Where a landlord opposes the grant of a new tenancy on the ground of persistent delay in paying rent, any failure to pay rent during the relevant period is to be disregarded.
The Government has brought in several restrictions in relation to residential possession. Firstly, the Act lengthens the notice period required during the relevant period. For residential tenancies, the “relevant period” set out in the Act is from 26 March to 30 September 2020; unless subsequently extended.
Section 8 Notices
Possession proceedings under section 8 of the Housing Act 1988 have always required the service of a notice of intention to bring proceedings for possession. The minimum period of the notice depended on the particular ground for possession relied on – from immediately, in the case of an occupier who has committed an indictable offence, to two months in the case of a former owner-occupier who wants his home back. During the relevant period, all notice periods are extended to three months. The court retains its power to dispense with service of a notice or to abridge the time.
Section 21 Notices
The Act extends the minimum notice period under section 21 of the Housing Act 1988 (no fault eviction) from two months to three months.
Other Private Sector Tenancies
No amendments have been made to the law affecting private sector tenancies which do not fall within the Rent Acts or the Housing Act – essentially tenancies at a very low rent (less than £1,000 pa in Greater London, £250 elsewhere) or a very high rent (in excess of £100,000 pa).
Possession claims suspended
From 27 March 2020 for a period of 90 days (i.e. up to 25 June 2020) there is a suspension of housing possession cases in the Court. This affects new or existing claims, so effectively they cannot be progressed during this period. This is in line with current public health advice to stop all non-essential movement. The Government’s strong advice to landlords is not to commence new notices seeking possession during the current time without a “very good reason” for doing so.
Maintenance and safety
Landlords should still carry out essential and urgent work to ensure that rented properties are safe. Examples given in the Governmental guidance include testing the fire alarm, roof repairs where there is a leak, boiler and plumbing repairs, broken white goods and security problems e.g. a broken window or door. Landlords should take a “pragmatic, common sense approach” to resolving issues. Where COVID-19 restrictions prevent landlords from meeting routine obligations they should not be unfairly penalised. However, the guidance specifically refers to landlords making every effort to abide by existing gas safety and electrical safety regulations (the latter comes into effect for new tenancies from 1 July 2020). Landlords must demonstrate that they have taken all reasonable steps to comply with the law. If landlords are not able to engage a contractor or gain access to the property due to COVID-19 restrictions they should document their attempts and any responses. The relevant legislation already contains provisions where the landlord will not have breached his duty if he has taken all reasonable steps.
General governmental guidance
The general message is that the landlord and tenant relationship should continue as normal as far as is possible i.e. the tenant should continue to pay rent and adhere to all other terms in the tenancy agreement. Landlords should continue to comply with their obligations as well. Where the tenant is unable to pay rent due to Coronavirus related difficulties, the tenant should speak to their landlord at the earliest opportunity. Landlords are requested to be flexible and offer support and understanding to their tenants as part of the national effort during this national emergency. Both parties are encouraged to agree a sensible way forward including for example, to agree a lower rent and a payment plan going forward.
Where there are financial difficulties for the landlord where the tenant is not able to pay rent due to Coronavirus related difficulties, mortgage lenders have agreed to offer payment holidays of up to three months including for buy-to-let mortgages.
There may well be further changes depending on how the situation develops. The Government has the power to alter the notice period required by substituting a period of up to six months. They may well also extend the suspension period on possession claims.
The coronavirus crisis is now fast-approaching its fourth month and we’re only just starting to see the economic impact. The spectre of a severe recession, the likes of which, in the words of Chancellor Rishi Sunak, “we have not seen” looms large. His words are unambiguous: we are awaiting the biggest economic shock in recent history.
There is rightful concern from one demographic in particular: private renters. This is a group thought to contain about 20 million people who rely on private landlords to keep a roof over their heads. It has grown rapidly over the last decade or so because getting on the housing ladder has become increasingly unaffordable while social housing has been in increasingly short supply.
This pandemic has exposed the precariousness of Britain’s private rented sector for what it is: a national emergency. Before Covid-19 disrupted life as we knew it, renters were already worse off than homeowners, spending a higher proportion of their earnings on housing. Sixty three per cent of them had no savings and almost half of working renters were just one paycheck away from losing their home. Think of them as the “squeezed middle” Ed Miliband once tried to champion – they were already stretching themselves to cover the most essential cost of all: housing.
The Government clocked this would be a huge problem early on. In late March, they announced a three-month suspension of evictions and the restoration of Local Housing Allowance to the lowest third of market rents which renters could access by applying for Universal Credit. These measures went hand in hand with the Job Retention Scheme which, they hoped, would tide anyone whose job was at risk over.
Now, as furloughs are extended, business closures are prolonged and redundancies registered, the housing charity Shelter estimates that around 1.7 million renters expect to lose their job. Early tremors revealed by the latest Office for National Statistics employment data – a 69 per cent increase in people applying to Universal Credit – point to a storm ahead. Citizens Advice estimates that 2.6m renters are behind on rent or expect to be as a result of this pandemic.
As we approach the end of that three-month period, questions are being asked about what the plan is for renters now. Will the evictions suspension be extended or will we, as the London Councils Group has warned, see an “avalanche” of them when it is lifted? Will the increase to Local Housing Allowance continue?
Left-leaning social media accounts are awash with calls for a “rent strike”. Labour’s shadow housing secretary, Thangam Debbonaire, has published a five-point plan for renters which includes protecting them from bankruptcy as a result of any rent arrears. Meanwhile, Housing Secretary Robert Jenrick has said the Government is still “thinking carefully” about what to do next and “developing a much more credible plan to protect renters and to help to shield them through this crisis.”
So where does that leave private renters who are, completely understandably, very worried?
What could happen with evictions and rent arrears?
As things stand, all evictions proceedings are suspended. This was initially done for a 90-day period and takes us up until the end of June. Last week Jenrick told Parliament a decision would be made on the future of the ban shortly before then. One of the suggestions in Labour’s five-point plan is extending it for six months.
Giles Peaker, an expert housing solicitor and partner at Anthony Gold explains: “The Government has increased the periods for notices seeking possession, and the courts have currently put all possession claims on hold until 25 June. But unless this is extended, or other measures are brought in by the Government, there is a real risk that people will face possession claims for rent arrears in a month or two, or possession claims after a section 21 notice. Tenants (and their guarantors) may also face money claims for arrears.”
One of the issues on the horizon, he adds, is that legally, as things stand, having been impacted by the crisis is not a defence for not paying rent for anyone challenging an eviction order in court.
It’s worth noting that, before Covid-19 took over every aspect of public life, we were expecting legislation to ban Section 21 evictions (also known as unfair or revenge evictions). It’s likely this will return to Parliament at some point. However, as Peaker notes, this wouldn’t protect those who haven’t been able to pay their rent.
What help can I get with rent because of coronavirus?
Back in March the Government announced that landlords could take a “mortgage holiday” if their tenants were unable to pay rent and encouraged them to be “compassionate” in such situations. Some didn’t feel this went far enough.
The Government also increased Local Housing Allowance (LHA) so that it covers the lowest third of market rents. This can be accessed by renters who find themselves unemployed because of this crisis via Universal Credit. However, not everyone will be eligible for this.
There is good news, though. When asked by i whether this change to LHA was permanent a spokesperson for the Treasury said: “This will apply for the 2020-21 financial year. There are no plans to reverse the increase.”
However, rents fluctuate. So, while the increase to LHA may be here to stay for now, if we saw rents rise, this wouldn’t stay in line with them and would continue to only cover the lowest third of market rents.
What ideas are being proposed to help renters pay their rent?
Labour’s plan to help renters was criticised by some because it proposed giving those who fall behind on rent a two-year period to pay back rent arrears which would leave them indebted to their landlord.
In Spain, a low-interest loan system has been introduced to help renters honour their payments. When Labour MP Clive Betts asked Jenrick if we would consider something similar, he didn’t dismiss the idea.
However, this would likely attract similar criticism to that thrown at Labour’s plan. Renters are already worse off than homeowners and saddling them with debt during an economic crisis will undoubtedly harm their prospects moving forward.
Caitlin Wilkinson, Policy Manager at Generation Rent, tells i that the rent strike being encouraged on social media by some is not the answer. “Suspending rents temporarily could put renters at risk of debt once the freeze is lifted,” she explains. “If we had a functional welfare system this wouldn’t be an issue, so fixing that should be our priority. Generation Rent is calling on the Government to remove the benefit caps, increase local housing allowance, and expand eligibility.”
So, what’s the alternative? Increasing the generosity of the housing benefits would be one place to start – this is something the Joseph Rowntree Foundation has already called for. JRF told i in April that the current increase to covering the lowest third of market rents just doesn’t go far enough and won’t break the fall of those who were already over-stretched. Shelter is calling for it to be increased further so that it covers “average rents” in any given area.
It’s really important that the Government comes up with an adequate plan to support renters who suffer financially in the coming months. As Peaker warns, a tenant not paying rent, regardless of the reason, could have serious implications. A tenancy agreement is a legal contract which means that “tenants are still obliged under their tenancy agreement to pay the rent, no matter what has changed in their circumstances.”
The Government, Peaker notes, have so far stopped short of telling landlords what to do. “While some landlords have agreed to waive rent, or reduce it, or for repayment plans in the future, there is currently no obligation on them to do this.”
Because so many people now rely on the private rented sector, an increase in the benefits available to renters is, in effect, going to result in a mammoth public bailout of private landlords on a scale never seen before. Building the social housing we’ve lost through Right to Buy is an obvious way out of this long-term but, in the short-term, renters can be reassured that the Local Housing Allowance increase isn’t going anywhere and wait for the Government’s next announcement.