Property Litigation Column: Notice periods, evictions and COVID-19: what length notice do you need for assured and assured shorthold tenancies, and can bailiffs evict yet?

Laura Tweedy looks at the periods of notice that will need to be given from 1 June 2021 when serving notices in England under section 21 and section 8 of the Housing Act 1988, and summarises how the notice periods have changed from pre-pandemic levels.

We may now be able to get back in restaurants to dine, but for landlords or agents trying to get back into properties in order to deal with tenant issues, it is quite another matter.

The pandemic legislation has caused many difficulties and much confusion for landlords and tenants, and sadly it is not quite smooth sailing yet. On 12 May 2021, the government announced yet another change to the notice periods required to evict renters in England in its press release Support for renters continues with longer notice periods. Regulations have since been made that give effect to the announcement.

So, what is required these days: two weeks, three months, six months, four months? It is hard to keep up, but if you are confused, look no further! This article sets out what the law now is in England (as at May 2021) and also takes a look back (at notices issued before the pandemic legislation came into effect and during that time) at what was required to ensure former notices were correct, ahead of issuing possession proceedings or attending hearings.

What length of notice is required?

Assured shorthold tenancy: section 21 notice

• From 1 June 2021 until 30 September 2021.
  Notice required: 4 months (to be issued within 8 months of service).
• From 29 August 2020 to 31 May 2021.
  Notice required: 6 months (to be issued within 10 months of service).
• From 26 March 2020 to 28 August 2020.
  Notice required: 3 months.
• Before 26 March 2020.
  Notice required: 2 months.

Assured tenancy: section 8 notice – rent arrears grounds 8, 10 and 11 where less than six months arrears

• From 1 August 2021 to 30 September 2021.
  Notice required: 2 months.
• From 1 June 2021 to 31 July 2021.
  Notice required: 4 months.
• From 29 August 2020 to 31 May 2021.
  Notice required: 6 months.
• From 26 March 2020 to 28 August 2020.
  Notice required: 3 months.
• Before 26 March 2020.
  Notice required: 2 weeks.

Assured tenancy: section 8 notice – rent arrears grounds 8, 10 and 11 where MORE than four or six months arrears

• From 1 June 2021 until 30 September 2021: more than 4 months arrears (note change from 6
  months arrears).
  Notice required: 4 weeks.
• From 29 August 2020 to 31 May 2021: more than 6 months arrears.
  Notice required: 4 weeks.
• From 26 March 2020 to 28 August 2020.
  Notice required: 3 months.
• Before 26 March 2020.
  Notice required: 2 weeks.

Assured tenancy: section 8 notice – anti-social behaviour

• From 29 August 2020 until 30 September 2021.
  Ground 7A: periodic tenancy: “not earlier” than notice to quit (NTQ) could expire.
  Ground 7A: fixed term assured tenancy: 1 month’s notice.
  Grounds 14A and 14ZA: 2 weeks.
  Ground 14: immediately after service of notice.
• From 26 March 2020 to 28 August 2020.
  Notice required: 3 months.
• Before 26 March 2020.
  Ground 7A: periodic tenancy: “not earlier” than NTQ could expire.
  Ground 7A: fixed term assured tenancy: 1 month’s notice.
  Grounds 14A and 14ZA: 2 weeks.
  Ground 14: immediately after service of notice.

Assured tenancy: section 8 notice – other grounds

• From 1 June 2021 until 30 September 2021.
  Grounds 1-6, 9, 12, 13, 15 or 16: 4 months.
  Grounds 7: 2 months.
  Ground 7B: 2 weeks.
  Ground 17: 2 weeks.
• From 29 August 2020 to 31 May 2021.
  Grounds 1-6, 9, 12, 13, 15 or 16: 6 months.
  Grounds 7 or 7B: 3 months.
  Ground 17: 2 weeks.
• From 26 March 2020 to 28 August 2020.
  Notice required: 3 months.
• Before 26 March 2020.
  Grounds 1, 2, 5, 7, 9, 16: 2 months.
  Grounds 3, 4, 6, 12, 13, 15, 17: 2 weeks.

If more than one ground is relied upon (save for 8, 10 and 11) and the notice periods are different lengths, the correct notice period must be checked. The notes to paragraph 5 of the new prescribed form section 8 notice (earliest date on which court proceedings can be brought) provides the relevant guidance (see The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2021 (SI 2021/562)).

What is next?

When will these longer notice periods end? Well, unfortunately for landlords, not too soon. The government has said that, subject to the public health advice and progress with its roadmap out of the pandemic, notice periods should return to pre-pandemic levels from 1 October 2021. Watch this space but, if the “third wave” comes, we are likely to have more extended periods and all-round confusion over notice dates for the foreseeable future.
In other landlord and tenant news, during the Autumn of 2021 we can expect a government White Paper on the private rented sector, which potentially poses the abolition of no-fault evictions and lifetime tenancy deposits. This will not be welcome news for private landlords.

Can bailiffs evict yet?

We know that bailiffs have been able to enforce certain limited possession orders during the pandemic, but that is set to change. In a more uplifting update for those landlords with possession orders ready to be executed, from 31 May 2021, general bailiff evictions can commence. Although, if the tenants have Covid-19 symptoms, the bailiffs cannot evict. Symptoms are unlikely to be able to be verified and this may be a caveat abused by those tenants not wanting to leave.

Written by Laura Tweedy. First published in Practical Law’s Property Litigation Column.