Legislation time (again)!... On Friday 28 August 2020, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) Regulations came into force - basically, all to do with the rules relating to gaining Vacant Possession of a property that is currently Tenanted.
In this newsletter, my aim is to provide a step-by-step guide on the full court process surrounding possessions, and to give you a summary of how the rules have changed under this amendment.
As always, updates on other areas will be sent out in due course.
Vacant Possession can only happen 1 of 2 ways...
Vacant Possession is the term given to a property where the Tenant has moved out, there are no occupiers and full control is back with the Landlord.
This can only be done in one of two ways:
1. The Tenant agrees a move out date with the Landlord and surrenders their keys on that date
2. The Tenant does not agree a move-out date with the Landlord and therefore a Court Bailiff is required to remove them and their belongings - it's only at this point that the Landlord is permitted to change locks = successfully gaining possession of their property
Clearly, in the first instance - it's straight-forward. Even if a Tenancy is in a fixed period - providing Landlord and Tenant agree - a move-out can be completed.
In the second scenario, court action will be needed: the process is as follows...
3-step guide: How to gain Vacant Possession through a court
As mentioned above, if the Landlord and Tenant cannot agree a move-out date for vacant possession - the only option available to guarantee vacant possession is a visit from the Court Bailiff.
In order for the court to send a bailiff, they would need evidence that the Tenant is still occupying the property at the expiration of the date shown on a Vacant Possession Order (VPO - issued by the court itself).
Okay, so the Landlord needs a VPO - how is this done?
In order for the court to issue a VPO, they would need evidence that the Tenant is still occupying the property at the expiration of the date shown on a Section Notice (issued by the Landlord).
So, as a 3-step summary in chronological order...
- The Landlord issues a Section Notice to the Tenant with a set date - they don't leave
- The Landlord escalates to the court, the Court issues a Vacant Possession Order to the Tenant with a set date - they still don't leave
- The Landlord applies to the court for a Court Bailiff - the court issues a final order to the Tenant with a set date (confirming the bailiff's visit) - if on this date, the Tenant refuses to leave, the Court Bailiff has the power to physically remove the Tenant and their belongings.
Which notice do I serve?
To get the application to the court under way - Step 1 states that you are required to serve notice on your Tenant.
In general, it's accepted that you would issue a notice for Vacant Possession either:
1. A no-fault eviction - example: best Tenant in the world, no problems whatsoever - I just want my property back because I want to live in it myself
2. A breach of Tenancy eviction - example: Tenant is way too noisy, annoying the neighbours and not paying rent - I want my property back so I can clean it up and rent it to someone who is going to look after it!
You may have heard the terms: Section 21 and Section 8 - this is where they come in. These are both Section Notices (in a set format that can be downloaded here) - the former served for no-fault evictions, the latter to Tenants that are in breach of their contractual terms.
For more information on Section Notices, please get in touch.
That's the process: what is different to before?
The new rules are only in relation to Step 1 - they relate directly to a change in the dates you are permitted to specify as your, "I want my property back by X" date.
Prior to lock-down and the pandemic:
1. In non-fault situations the Landlord was permitted to set a vacation date of 2 months (as long as the notice expiration date fell on or after the expiration of the fixed term).
2. In breach of contract situations (Section 8) - a vacation date as little as 14 days could be set (depending on the severity of the breach).
The legislation passed on 28th August 2020 now states that for all notices - the minimum date that a Landlord can set for vacant possession is 6 months* from the date of service.
*In instances where rent arrears are more than 6 months, Landlords can ask for a 4-week eviction.
The practical effect of this Amendment is significant...
I hope I've done a good job of simplifying and making the new Amendment clear.
So, what does the new legislation mean for you as a Landlord?
As a summary, it means that if you do want vacant possession and have to pursue the court route, ensure you plan for approximately 14-18 months to get everything completed - also note that to submit the order to the court, the fee is £355.
Prior to these changes, we would say (in general):
Month 0 -> Serve 2 month notice
Month 2 -> Apply for a VPO
Month 4 -> VPO expires
Month 6 -> Court Bailiff = VACANT POSSESSION
Now, it looks like this (in general):
Month 0 -> Serve 6 month notice
Month 6 -> Apply for a VPO - will take significantly longer to get one due to the back-log since courts shut down due to the coronavirus
Month 12 -> VPO expires - additional time may be awarded to Tenant due to challenging circumstances
Month 14-18 -> Court Bailiff = VACANT POSSESSION
Clearly, that's a LONG time that you are in the hands of the courts - and if you are accruing rent arrears in this time period, we would advise that all focus and energy goes into obtaining the VPO - a full log of unpaid rent will be kept so that we can start a money claim online (Landlords still have 6 years after vacant possession to pursue any monetary loss).
PEACE OF MIND: whilst these situations are rare, I would like to put your mind at rest as one of our customers - the legals are our area of expertise, we learn about all the nuances and intricacy surrounding all legislation so that you don't have to!
There is plenty of detail when it comes to evictions and how they work: I really just wanted to provide a general overview and perhaps a foundation for you to apply the news items you may be hearing in the national press.
If you would like any advice/guidance/specific information relating to a particular Tenancy - please do email me directly and I'll happily schedule a call with you so that we can discuss options.
Sincerest regards, Ali.
Posted 09 September 2020
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