1. What is the current eviction process? How does this differ from the process before the pandemic?
The usual eviction process is initially to serve either a section 21 notice on a tenant, or a section 8 notice, or both. Usually both are served because this is the most thorough approach.
The section 21 notice is a non-fault notice, meaning that this is the notice served when the tenant has not committed any breaches of the tenancy, but the landlord wishes to regain his/her property. The section 21 notice may only be served to expire no earlier than the end of the fixed term of the tenancy. Prior to the pandemic, the section 21 notice was a two-month notice, but this has now been extended (from 29 August) so that it is now a six-month notice. Practically, this means that if a section 21 notice is served, the landlord will not be able to issue proceedings to evict the tenant for six months.
There are various grounds on which a section 8 notice is served; the most common grounds are 8, 10 and 11, which focus on rent arrears. Ground 8 is the only mandatory ground of these three, and requires the tenant to be in at least eight weeks’ arrears when the notice is served and at the hearing in order for the possession order to be made. In terms of the notice period, rent arrears notices required two weeks’ notices prior to the pandemic. Post-pandemic, more specific rules have been introduced in respect of notice periods. In terms of ground 8, the notice period is now 6 months if the arrears are less than 6 months at the time the notice is served, and if the arrears are at least 6 months at the time the notice is served then the notice period is 4 weeks.
Following the expiry of the notice(s), proceedings are issued and a hearing is arranged. The stay on possession proceedings was lifted on 20 September, so hearing dates are being arranged.
2. If an eviction notice was served before the temporary pause on evictions, what timescales are the tenants now entitled to?
If the eviction notice was served prior to the temporary pause on evictions coming into effect on 27 March, the notice, which would have been served in accordance with the pre-pandemic rules, would still be valid and proceedings would still have been in a position to be issued after 27 March at any point.
The stay on possession proceedings was only lifted on 20 September, so although proceedings may have been issued in respect of these possession claims nothing further will have been able to be done in terms of furthering the claim until 20 September, save for service and filing of reactivation notices which are required to re-start the ball rolling in terms of getting hearing dates in the diary. Given the level of possession claims to be reactivated, it is likely that there may be a backlog that will cause at least some level of delay in respect of hearing dates, and the same may also apply to the time taken for warrants of possession to be issued.
Although the reactivation notice is required to detail any relevant information about the tenant insofar as the defendant’s circumstances are concerned, this will not prevent the eviction taking place where mandatory grounds are relied upon, but may have an effect on the amount of time tenants are given to vacate the property.
Another thing that may increase timescales is that the court now has the power to suspend the standard period between issue of a claim and a hearing (this time period would otherwise be a maximum of eight weeks) in order to manage the influx and spread out hearings appropriately.
3. What, if any, differences are there between private tenancy evictions and tenants of council homes and housing associations?
The legislation applies in the same way in both scenarios.
4. If a tenant feels their landlord has been unfair and acted illegally, how can a solicitor help?
Landlords have been encouraged to liaise with tenants about their financial situations and how they have been affected by coronavirus, but in cases where mandatory grounds are relied upon such that the court is compelled to make a possession order, it is difficult to consider how a failure to communication with tenants in such a way will result in the eviction not going ahead.
In terms of whether eviction notices are valid, the law has changed and also become slightly more complicated in terms of how to ensure notices are validly served, so it is worth tenants getting an eviction notice checked over by a solicitor to check that it is valid in terms of the level of notice given.
It is also worth remembering that a section 21 notices cannot be served in the following circumstances:
- The tenant has not been provided with a valid in-date gas safety record before the notice has been served (and preferably at the beginning of the tenancy);
- The tenant has not been provided with an in-date EPC;
- The council has served an emergency remedial action notice or an improvement notice in respect of the property; or
- The deposit paid in respect of the tenancy has not been adequately protected and has not subsequently been returned.
If it appears that any of these situations apply to the tenant, again, it is worth asking a solicitor for help because the eviction notice served may not be valid.
5. What top tips would you give to someone concerned about the prospect of eviction?
Keep an open line of communication with your landlord so that they know the financial situation you are in, as well as your situation in terms of shielding, or vulnerable family members. It may be that you are able to work something out with your landlord such that he/she is prepared to wait a little while longer before serving notice or issuing proceedings and/or you are able to work out an affordable and manageable payment plan with your landlord if you are in arrears.
If a section 21 notice is received and you have otherwise been paying your rent, continue to pay this – you are still contractually obliged to continue to pay rent after an eviction notice is served and if you stop paying this could render you more vulnerable.