Blog - 22/03/2021
No s.21? No worries, s.8 instead – relying on tenant’s nuisance to obtain possession in times of Covid
Covid-19 has had an unprecedented effect on residential possession proceedings in the past year as the government enacted legislation to prevent tenants from being evicted during the pandemic.
The moratorium on possession proceedings implemented by the Coronavirus Act 2020 was finally lifted in September 2020, but a temporary amendment to the Housing Act 1988, means that landlords now have provide a tenant with at least six months’ notice in order to terminate an Assured Shorthold Tenancy (“AST”) on no fault grounds.
This means that, pursuant to section 21 of the Housing Act 1988, a landlord is required to give a tenant six months’ notice before issuing possession proceedings, if the tenant remains in the property past the expiry of their lease or after the service of a break notice.
Similarly, section 8 of the Housing Act 1988 has also been amended to provide that a landlord must give a tenant six months’ notice before they can take steps to evict them for breaching their lease in most circumstances.
However, regulations enacted in August 2020 dis-applied parts of the Coronavirus Act 2020 so that the increased notice period does not apply when relying on certain grounds, including in circumstances where a tenant or person residing in the property has been guilty of causing or is likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality (ground 14).
This means that if a landlord seeks to rely on ground 14 when serving a section 8 notice, they may commence proceedings immediately after service of the section 8 notice on the tenant.
This is an extremely useful tool for landlords with problem tenants, particularly in circumstances where a landlord also owes duties to other tenants in a building and the problem tenant’s behaviour is a cause for ongoing wider concern.
Anti-social behaviour, excessive noise and unsanitary conditions may all fall under this ground, as well as illegal and immoral activity, which may in the current circumstances also include breaches of lockdown rules. Importantly, this ground does not require there to be have been a breach of the terms of the AST, so it does not matter if the AST does not touch on the behaviour in question. However, it is essential that the AST makes provision for the tenancy to be brought to an end on this ground. Typically, there will be a clause in the AST that states which grounds of the Housing Act 1988 the landlord may rely upon to recover possession of the premises.
It is important to remember that when serving a section 8 notice, the landlord will need to prove that the tenant has committed the act complained of. As such, it is imperative that the landlord compiles as much evidence as possible to support its claim, for example correspondence with the tenant regarding their behaviour, complaints from neighbours, photographs and recordings of mess or noise; anything that may help to prove that the tenant has, or is likely to cause, a nuisance or annoyance.
Landlords should also bear in mind that ground 14 is a discretionary ground, which means that even if the ground is proven, a Judge does not have to grant an outright possession Order and could make no Order or a “suspended” possession Order, which is a warning to the tenant not to repeat its conduct. However, this should at the very least serve as a strong deterrent to problem tenants and hopefully prevent similar behaviour moving forwards.
In summary, while the Coronavirus Act 2020 has certainly made it more difficult to regain possession of residential properties, in circumstances concerning anti-social behaviour or nuisance, it is still possible to take effective and timely action against problem tenants and landlords should obtain advice in order to avail this important remedy.
If you have any queries about this subject, then please contact Shams Rahman, Emma Gregory or any member of the Property Litigation team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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