Changes to Notice Periods

Goodness. What a week it has been. This time last week I was quietly replying to some emails, enjoying a cup of tea (and a custard cream) when all hell broke loose online and the internet went into meltdown. Or at least the Private Rented Sector part of the internet did. Twitter exploded with rumours that the Government were about to change the notice periods for the service of Section notices. Of course, we all knew it was coming but in true fashion the Government landed it on us just a few hours before it was due to take effect. Coupled with it being a Friday afternoon, perhaps they were hoping landlords and agents would be winding down and it would creep in under the radar. They hadn’t reckoned for social media.

So here we are a week later, having had the chance to digest the changes and try to get our heads around the concessions that have been made for those landlords with tenants in significant rent arrears or are unlucky enough to have tenants displaying anti-social behaviour.

Let us start with the easy one. Section 21’s. Six months for any notices served on or after 29th August 2020.

Section 21’s served before this date remain at three months notice. In addition the Government have circumnavigated the issue of the shelf life of a Section 21 by extending it to four months after expiry of the notice period. So, in simple terms for a standard tenancy you give the tenants six months notice and then have an additional four months to start court proceedings should you need to. Tick.

Section 8’s are a little more complex. To be fair, MHCLG (Ministry of Housing, Communities and Local Government) have listened to the concerns raised by Landlords, and rather than applying a blanket six months notice they have adapted it so that each ground (reason) carries a different notice period. I’ll come back to this in a moment.

For those of you not familiar with Section 8 notices, it is a fault based notice and there are different grounds for serving it. For example, you might use ground 8 for rent arrears, or ground 12 for breach of tenancy obligations. In normal times, way back in March, you would choose your ground(s) and the ground would vary from no notice to three months notice. Additionally the grounds are seperated into mandatory grounds and discretionary grounds. The former being that if proven the court would have to give you possession, and the latter being that possesion was up to the Judge on the day.

I suppose the grounds most landlords will be interested in are rent arrears. The new rules mean that you can serve a Section 8 for rent arrears using a mandatory ground 8 alongside discretionary grounds 10 and 11. However, this has been separated into two parts. If you have at least six months of arrears you can serve notice giving the tenant four weeks notice that you intend to apply to Court for possession and the arrears. Under six months and you have to give six months notice. This means that you need to think carefully about when you serve notice and will depend on the level of arrears.

Another reason for serving may be anti social behaviour and therefore using ground 7a which is mandatory, you can serve with 4 weeks notice if in a periodic tenancy or one month if in a fixed term.

You will also need to remember that the notice will be as long as the longest ground. So, if you use ground 8 for six months arrears and also ground 12 for a breach of some other tenancy obligation, the notice period would be six months, not the four weeks.

On top of all this you have a new prescribed form for Section 21 notices, reactivation notices for possession claims made before the 3rd August 2020, pre action protocal for rent arrears and the Courts remain closed to new hearings until the 20th September.

Confused? It is not an easy task to navigate your way around the differing notice periods and it is all to easy to get it wrong. For that reason, unless you are well versed in possession proceedings, we would recommend you use the services of a solicitor or an agent to help you. Imagine finally obtaining a Court hearing only to find the notice is invalid because it had the wrong date on it. If you fancy taking it on yourself, the technical guidance notes issued by the Government may help and you can see these here. These changes are in place until the end of March 2021 and I wouldn’t be at all surprised to see this extended, or even used as the vehicle to abolish Section 21’s completely.

In my experience Section 8 notices should be used as a last resort. The vast majority of tenants fall into rent arrears, not through malice but because of complications in their finances. Often they will stop communicating in the hope that it buys them some time but this only creates frustration for landlords. It is far better to talk these things through and agree some form of payment plan. There is plenty of help available at the moment for tenants suffering as a result of the pandemic and they should be encouraged to speak to the local authority. Tenants in Wales and Scotland have access to loan systems to ease arrears and it may be this is introduced in England in the forseeable future. In the meantime landlords should look to reassure their tenants that engaging in a conversation will help in the long term and hopefully lead to all parties being able reach an agreement without tenants losing their home.

Afterall these are unprecedented times and we all need to look out for each other.

Please note the date this article was published as the law may have changed since it was posted. You should always seek independent legal advice if you are intending to rely on any of the contents.