Covid-19

Residential Tenancies and Healthcare Professionals – Covid19 

23.04.2020

Key points:

  • Three months’ notice must now be provided to terminate most residential tenancies. This may increase to a period of six months’ notice as the Covid-19 pandemic evolves.
  • No new possession orders to evict tenants can be sought from the courts until 30 October 2020.
  • Existing possession order applications have been frozen until 30 October 2020.
  • A licence/lodger type agreement - where accommodation is shared with a resident landlord/licensor (or members of their family) - is not affected by the Coronavirus Act 2020, so these arrangements are terminable by reasonable notice to quit. The period of notice required will depend on whether the agreement provides for a defined term or, if the agreement is a rolling agreement with no defined term, the length of notice to quit will be determined by how the rent is paid e.g. a week’s notice for a weekly rent payment, a month’s notice for a monthly rent etc.  

As Covid-19 unleased itself on the UK, placing the country into lockdown, the Government responded with emergency legislation to, amongst other things, protect residential tenants.  The emergency provisions are found in the Coronavirus Act 2020, which took effect on 27 March 2020.   

The Coronavirus Act 2020 provides that notices to terminate specified residential tenancies must, as of 27 March 2020 until 30 September 2020, give three months’ notice to terminate the tenancy.  The Act provides for the three month notice period to be further extended by up to six months, depending on how the Covid-19 pandemic situation plays out.    
The rules which govern how the courts operate have also been amended to put in place, until 30 October 2020, a freeze on new and existing possession claims and applications to enforce possession orders.  

The Coronavirus Act 2020 specifies which types of residential tenancies it applies to and they are:  Rent Act/protected tenancies, Secure tenancies, Assured tenancies, Assured Shorthold tenancies, Flexible tenancies, Demoted and Introductory tenancies.

Assured Shorthold Tenancies 

 
Of the specified types of tenancy, the Assured Shorthold Tenancy is the most common amongst private landlords for lettings of houses and flats.  The statutory definition of an Assured Shorthold Tenancy is: 

“A tenancy of a dwelling-house let as a separate dwelling to an individual who occupies the house as his or her only or principal home which is entered into on or after 28 February 1997 under which the rent is neither more than £10,000 a year nor less than £250 a year (£1,000 in London)”. 

An Assured Shorthold Tenancy grants possession of the premises for a fixed term, often six or twelve months.  Whilst the Assured Shorthold Tenancy is granted for a fixed term, the tenancy does not automatically end at the expiry of the fixed term and, unless the landlord gives notice to terminate the tenancy, it continues to roll on a statutory periodic basis.   
 
For the landlord to end the tenancy either on expiry of the fixed term, or once it has become a statutory periodic tenancy, the landlord must give two months’ notice to terminate the tenancy.  This type of notice is commonly referred to as a s21 notice.   If the tenant does not vacate the premises on expiry of the notice, the landlord must obtain a court order for possession.   
 
To enable a landlord to terminate the Assured Shorthold Tenancy during the fixed term, for example, in the event of the tenant failing to pay the rent or breaching a term of the tenancy, a landlord can serve a notice seeking possession.  This type of notice is commonly referred to as a s8 notice and in respect of which the landlord cannot evict the tenant without a court order for possession. 

In light of the Coronavirus Act 2020, both types of notices, s21 and s8, must, from 27 March 2020 until 30 September 2020 (subject to review, as mentioned above), give a three month notice period to terminate the tenancy.  Further, in view of the 90 day ban on possession proceedings being progressed through the courts, no claim for possession can be progressed until after 30 October 2020. 

Lettings to which the Coronavirus Act 2020 does not apply 

The Coronavirus Act 2020 does not, amongst others, apply to: 

  • Service Occupancies – the accommodation is licensed to the employee by the employer in connection with their job, for example, a housekeeper, live-in carer etc.  This agreement ceases on termination of the employment.   
     
    Note that a Service Occupancy is distinguishable from a Service Tenancy which, whilst provided in connection with employment, is not provided for the purpose of carrying out the employment.  Such a tenancy will continue beyond cessation of the employment, to be terminated according to the particular type of tenancy it is. On that basis, such a tenancy may or may not be affected by the Coronavirus Act 2020 and the 90 day ban on possession proceedings and it would need to be specifically reviewed. 
     
  • Lodger agreements / accommodation shared with a resident landlord / licensor - where a person is sharing accommodation with their landlord/licensor or the landlord/licensor’s family and the landlord/licensor or the landlord/licensor’s family occupies the house or flat as their principal residence.  
     
    It is important to note that, in addition to the Coronavirus Act 2020 not applying to this type of shared accommodation arrangement, it is also (subject to assessing the substance of the agreement) not protected by the Protection from Eviction Act 1977, as a letting of this nature is likely to be an excluded licence or tenancy, as defined by s3A of the Protection from Eviction Act 1977.

    This means that the landlord or licensor does not need to have a court order with which to evict the person (although of course the use of force, threatening behaviour or harassment would be unlawful). In order to evict a person residing under a lodger agreement/accommodation shared with a resident landlord/licensor (or their family), the landlord or licensor, technically, merely needs to give notice to quit to end the agreement on expiry of the term/defined period, or, if the agreement is a rolling agreement with no defined term, the length of notice to quit will be determined by how the rent is paid e.g. a week’s notice for a weekly rent payment, a month’s notice for a monthly rent etc.  As a catch all in any event, a reasonable period of notice to quit should be given.  As stated above, as there is no requirement to obtain a court order for possession, the right to occupy will cease on expiry of the notice. 

    For the avoidance of doubt, each arrangement and agreement should be reviewed on its own facts and merits to assess the substance of the arrangement to identify whether or not it definitely is an excluded licence or tenancy and what contractual arrangements may exist, including the length of the notice to terminate the agreement and any early termination provisions such as a break clause which might enable the agreement to be brought to an end before expiry of the fixed term. 

Conclusion

Whilst each case will turn on its own facts and it is not always immediately obvious what type of letting a person has, the starting point will always be to look at any written agreement and, subject to that, look at the substance of the occupation, including whether the person is paying rent, whether the occupation is for a fixed term/defined period of time, whether the person has exclusive control and possession of the premises, and whether the person is sharing premises with a resident landlord/licensor (or their family).   
 
Understanding and identifying the substance of the occupation, sometimes notwithstanding what the written agreement may say or, indeed, where there is no written agreement, is crucial to identifying the extent of the person’s rights and applicable protection from eviction.   
 
Identifying a person’s rights of occupation and protection from eviction is of course all the more acute in the context of the Covid-19 crisis and any person who is unsure of the status of their occupancy or who is being threatened with eviction should seek immediate legal advice so that the lawfulness of the landlord’s actions can be assessed. 

This legal update has been prepared by Hannah Carter, Legal Director at Brabners LLP www.brabners.com 
 
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