Winter eviction ban and exemptions - more disappointment for landlords

BY GEORGE COHEN, SOLICITOR, REAL ESTATE DISPUTES

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020

On 5 November 2020, the Lord Chancellor sent a letter to the High Court Enforcement Officers Association to request that evictions do not take place at residential properties, except in very limited circumstances. The Lord Chancellor suggested that an exemption would be introduced for “extreme pre-Covid rent arrears”. The letter was an exceptional measure, and its legal effect was, to say the least, questionable. Indeed, at least one legal challenge was launched against the policy, which arguably should have been implemented by introducing legislation.

However, before that challenge came to fruition, the Government introduced The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020, which come into force today, 17 November 2020, and apply to England only. In simple terms, the effect of the Regulations with respect to residential tenancies is that no evictions can take place until 11 January 2021, unless an exemption applies. The exemptions include residential possession cases brought on grounds:

• involving trespass or anti-social behaviour; and
• where the tenant has been convicted of an offence.

Regulation 2 (which can be found here) sets out a full list of the exemptions. A crucial exemption applies in cases involving “substantial rent arrears”, which, at face value, appears to be good news for landlords. However, the exemption only applies where:

• a possession order has been granted on grounds of rent arrears; and
• on the date the order was granted, the tenant was in arrears of at least 9 months’ rent, disregarding any arrears accrued after 23 March 2020.

As 9 months’ rent arrears must have accrued on or before 23 March 2020, this exemption will be of limited use to the majority of landlords, but it will assist in the most extreme cases. However, many landlords are of course experiencing severe financial hardship as a result of excessive rent arrears which do not meet the very high threshold set out in the Regulations. This can have a significant financial impact on a landlord’s finances, especially where rental income comprises a significant amount of their revenue.

To compound the fact that the “substantial rent arrears” exemption is very restricted, in our experience, some bailiffs are not carrying out evictions, even where an exemption applies. In one case, we have been informed that the particular bailiff’s office is simply closed during the lockdown, and this kind of policy may well extend into January 2021. It is unclear that the Regulations will do anything to deal with this issue.

Whilst there is now some clarity following the publication of the Lord Chancellor’s letter (better late than never), it looks like the vast majority of evictions will have to wait until the New Year.

On the positive side, it does appear that court proceedings, before the point of eviction, are progressing (in most County Court centres). The hope, therefore, is that landlords can do all they can to obtain a possession order before Christmas, with a view to having an eviction appointment listed in late January or February 2021.