Recent media reports and social media excerpts suggest there has been an increase in attempts by landlords during the current Covid-19 (Coronavirus) crisis to evict their tenants including one national report of a landlord attempting to evict a paramedic by text. This article answers in brief some of the questions that tenants and landlords may have in an already worrying time.
What process should a landlord follow if they wish to evict lawfully?
Most tenants with a private landlord have an assured shorthold tenancy (there are exceptions, for example, if the landlord lives in the same property with the tenant). If a tenant has such a tenancy, the landlord can usually only evict the tenant lawfully if it serves a notice under either section 21 of the Housing Act 1988 (a no fault eviction process) or section 8 of the Housing Act 1988 (where the landlord says the tenant is at fault such as because of rent arrears) and obtains a court order and gets the bailiff to enforce any possession order.
Are there any measures currently in place to prevent a landlord evicting during the Covid-19 (Coronavirus) crisis?
The government and judiciary have taken steps to prevent a landlord from evicting a tenant during the current pandemic.
The government has changed the law so that the notice that a landlord needs to serve on the tenant as a prerequisite to any possession claim (regardless of type of tenancy) is now 3 months (section 81 and schedule 29 of the Coronavirus Act 2020). This change in the law, at the time of writing, will continue until 30 September 2020.
The judiciary has introduced a new Practice Direction to the Civil Procedure Rules (Practice Direction 51Z) to stay (put on hold) all possession proceedings and action to enforce any possession order for 90 days from 27 March 2020.
What can a tenant do if a landlord seeks to unlawfully evict?
Unlawful eviction is a criminal offence so a tenant can contact the police for assistance. If it is suggested that this is a civil matter only, the tenant should refer the police to section 1 of the Protection from Eviction Act 1977.
Unlawful eviction also gives rise to a civil cause of action. A tenant who is unlawfully evicted can seek an injunction from the court ordering the landlord to reinstate the tenant to the property and can claim damages (compensation) for the unlawful eviction. A solicitor, Shelter or a Law Centre will be able to assist with such a claim and legal aid is available if the tenant qualifies in terms of means (income).
What are the consequences for a landlord who unlawfully evicts?
A landlord who unlawfully evicts his or her tenant is guilty of a criminal offence unless he or she proves that he or she had reasonable cause to believe that the tenant had ceased to occupy the premises. This offence is punishable by a sentence of up to 2 years in prison.
A landlord who unlawfully evicts could also face proceedings in the civil court. The first and most immediate remedy that will be sought by the tenant is an urgent injunction to reinstate the tenant and notwithstanding the Coronavirus crisis the courts are likely to deal with such injunction applications urgently. In addition, a tenant can make a claim for damages (compensation). A recent Court of Appeal decision acknowledged that awards for damages for unlawful eviction are generally between £100 and £300 per day. This author suggests that in the current climate awards are likely to be towards the upper end of that range. In addition, an unlawfully evicted tenant can seek exemplary and aggravated damages, which altogether can be in the thousands of pounds.
What can a landlord do about a tenant who is acting in an anti-social manner or committing a nuisance in these unprecedented times?
Injunctions remain available and are not subject to the stay that has been imposed on possession proceedings. Social Landlords and Local Authorities can seek an injunction under the Anti-Social Behaviour Crime and Policing Act 2014. A private landlord can seek an injunction to enforce the terms of the tenancy agreement so, as long as the landlord has a good and comprehensive tenancy agreement, he or she can take action in the event of a breach to enforce the terms.
Does Coronavirus affect the tenant’s obligation to pay rent?
Coronavirus is likely to have a significant impact on the incomes of both landlords and tenants, but the contractual obligation on the tenant to pay the rent remains the same. Those landlords and tenants that are struggling financially should communicate with one another (by phone, email or letter in the current climate of restrictions) as this is far more likely to promote understanding and a good landlord and tenant relationship.
For landlords, during this uncertain period the government has stated that it “will ensure that support is available where it is needed for landlords” and there is a 3 month mortgage payment holiday available where landlords have a buy to let mortgage.
For tenants, the government has introduced various support measures depending on whether you are employed or self-employed and more information on these can be found on the government website or through citizens advice.
Magdalen Chambers has specialist Housing and Property Litigation Teams that remain fully functional during these difficult times and are able to advise tenants and landlords alike on any issues they are facing. In the event that you need assistance in any such matters we can be contacted on our usual telephone number 01392 285200