Charles Jamieson, an experienced Legal Executive with the Dispute Resolution department of Bishop & Sewell LLP, explores the new rules laid out by the Government in the wake of the COVID-19 pandemic.
Three(ish) months ago I was asked to provide my predictions for 2020 – I can confidently say I never predicted this turn of events!
It is Sunday 22 March (the date for once is important as the goalposts shift almost daily) and I am sat, as ever, with a cup of tea in hand, reading an article on a paramedic who was purportedly evicted by text message on 12 hours’ notice, because their landlord was concerned they may bring home COVID-19.
From the information available it would be dangerously complacent for a lawyer to suggest that this was clearly an unlawful act however, it does beg the question of how the Government will properly police and oversee their current proposals in relation to an embargo on evictions.
Looking at the Legislation
On 18 March 2020 the Government announced an introduction of “emergency legislation to suspend new evictions from social or private rented accommodation while this national emergency is taking place” – .gov.uk website.
It is frustratingly not a simple task to prophesise how this will play out, and in the absence of draft legislation to consider, I cannot provide any certainty, but for the moment here are some of the factors which landlords and tenants will need to be alive to:
- Will the embargo on possession proceedings be solely focused on COVID-19 impacts?
- What constitutes a valid COVID-19 consideration (is COVID-19 too ‘remote’ from the actual breach)?
- What happens if a Landlord has already served a Section 8 Notice because they had a bad tenant prior to this embargo?
- How often should a Landlord be serving a Section 21 Notice to ensure it is actionable on the release of the embargo?
- How does this emergency legislation marry with long leases, where breaches may not be as a result of the COVID-19 pandemic?
- Does the pursuit of a section 168 Commonhold Leasehold Reform Act 2002 Application constitute commencement of possession proceedings?
- What happens if a gas safety certificate expires mid isolation?
- What happens if there is a right to forfeit for another breach / how does this operate when there is a mixed use property?
- Does this apply to occupiers under licences who pay rent but are not occupying by way of a lease?
- What if the landlord needs the property returned for their primary residence?
So, what should you do as a landlord / tenant in these situations?
Without providing legal advice, if you find yourself in a problem, and are unable to obtain professional advice / advice from a support organisation, the starting point may simply be to have an honest and frank (without prejudice) discussion with your counterpart. We are all in this together and (in the absence of being able to pursue possession proceedings in any event) people will probably want to come to some form of arrangement.
If you are going to come to agreed terms, it would be prudent to have the same reviewed before finalising them, as there may be other elements which impact the terms that parties have not fully considered – such as required conditions to determine when the material factors have concluded or a mechanism to revert to the previous status quo.
Whatever is coming, the one thing I do know is that we shall all have to weather it together. As a proponent of Alternative Dispute Resolution I am aware of the potential for parties to be able reach compromise (a workable solution for all even where neither party gets their ideal outcome) and am therefore hopeful that in the absence of availability of arbitral recourse people will nonetheless find a way to navigate this storm as one.
