Residential possession: landlords' questions answered


Residential landlords will be acutely aware of the impact of the coronavirus pandemic on the private rented sector in England since March. Many have experienced rent arrears or delays in obtaining possession, or have needed to show forbearance to tenants whose financial circumstances have been affected by the pandemic. 

The Coronavirus Act 2020 and related emergency legislation and other measures have had significant implications for landlords’ ability to recover possession. The situation is fluid and landlords may have found it difficult to keep up with the latest rules. Here, we round up the current position in the form of answers to some common questions we are seeing from landlords.  

How much notice do I now need to give to obtain possession? 

From 29 August 2020 until 31 March 2021, both section 21 notices (which do not require the landlord to give a reason for requiring possession) and section 8 notices (which require the landlord to prove one of several permitted statutory grounds exist for terminating the tenancy) require at least six months’ notice to be given to tenants. 

Those serving a section 21 notice should also bear in mind the pre-existing rules that it cannot be served within four months of the start of the tenancy and, unless there is a break clause, the notice cannot expire before the end of any fixed period of the tenancy has come to an end.

For section 8 notices, the six-month notice period is reduced in certain serious cases, for example, it is reduced to:

  • Immediate notice, where (broadly) the tenant has caused a nuisance or been convicted of using the property (or permitting it to be used) for immoral or illegal purposes, or any indictable offence committed in, or near, the property.
  • Two weeks, where there is domestic abuse or where the tenancy was obtained by the tenant as a result of fraud. 
  • Four weeks, where at least six months' rent is unpaid at the time the notice is served. 
  • Four weeks (periodic tenancy) or one month (fixed term tenancy), where eviction is on the grounds of serious anti-social behaviour. 
  • Three months, where the grounds for eviction relate to the tenant's immigration status. 

What form of notice should I use?

The correct form of section 8 or section 21 notice (as appropriate) must be used. The prescribed forms of notice are updated regularly. For example, updates were made on 29 August and 2 September to reflect the increased notice periods (see How much notice do I need to give to obtain possession?). Using an old version of the notice may invalidate it. 

Will the notice periods return to ‘normal’ once all of this is over? 

The default position, if there is no further legislation, is that the notice periods for both section 21 and section 8 notices will revert to what they were before the Coronavirus Act 2020 came into force on 26 March 2020. For a section 21 notice, that means two months’ notice, whilst for a section 8 notice, the respective notice periods for the specific grounds being relied upon will apply. The government has published guidance for landlords which includes a table comparing pre- and post-coronavirus notice periods. 

However, it is impossible to rule out further changes or an extension of the current arrangements. 

Is the government still planning to get rid of section 21 notices?

On 15 April 2019, the government announced plans to consult on new legislation to abolish Section 21 evictions.  It remains to be seen when and in what form any changes will come into effect, but there is no current indication the government plans to abandon those reforms. 

Are residential possession proceedings currently being heard? 

Following a stay of all possession proceedings, which lasted from 27 March 2020 until 20 September 2020, claims started to be heard again from 21 September 2020. Landlords must serve a reactivation notice in order to reactivate claims which were issued before 3 August 2020, and provide the court with any information the landlord has about the impact of Covid-19 on the tenant. Claims made on or after 3 August 2020 do not need to be reactivated. 
HM Courts & Tribunals Service has confirmed that possession proceedings will not be suspended during the new four-week national lockdown which came into force on 5 November.

When will my possession case be heard?

Delays in cases being heard will be experienced due to a significant backlog of claims following the stay on proceedings, on top of any new claims which have been issued since 20 September.  

I have a possession order. Are there any restrictions on enforcing it?  

On 5 November 2020, the government announced that no bailiff enforcement action will take place during the new period of national restrictions which is in place until 2 December. This, combined with the previously announced ‘winter truce’ on evictions, means evictions will not be enforced until the 11 January 2021 at the earliest.

The government says there will be limited exceptions to these protections for cases of illegal occupation, fraud, anti-social behaviour, eviction of domestic abuse perpetrators in social housing; or where a property is unoccupied following the death of a tenant. 
The government also intends to introduce an exception for extreme pre-Covid rent arrears. More detail is expected on this in due course. We expect the required level of pre-Covid rent arrears to be set fairly high.  

What should residential landlords be doing now? 

Termination of a tenancy is rarely straightforward, even less so at the moment, and landlords are advised to seek specific advice in good time before seeking to determine one.  

The journey back to ‘normal’ for the private rented sector looks long and arduous. The current difficulties suggest landlords’ best initial route may be to negotiate with tenants who are struggling in order to agree concessions and/or a rent repayment plan. 

If seeking possession becomes inevitable, landlords will have to accept the inevitable delays and ensure strict compliance with all notice and procedural requirements to avoid their claims failing on technical grounds. 

Contributor: Matt Battensby

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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