Unusually for an area of human endeavour which ordinarily operates with adherence to legal certainty, the Ministry of Housing, Communities and Local Government has announced that the partial ban on evictions shall continue until 31 May 2021 in England. The timing of the announcement came 21 days before the current iteration of the partial ‘eviction ban’ was due to come to an end on 31 March 2021.
Whilst the anticipated legislation has not yet been published, it is assumed that the legislation shall probably be named, ‘The Public Health (Coronavirus) (Protection from Eviction) (England) (No. 3) Regulations 2021’, or similar.
Whatever the name, it will apply only in England, as public health is a devolved issue. The Welsh Government is yet to announce a decision on the position in Wales, where the ban is due to expire at the end of 31 March 2021, under the Public Health (Protection from Eviction) (Wales) (Coronavirus) Regulations 2021, Regulation 3(2).
Coupled with the further extension to the de facto moratorium on most evictions, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) Amendment) (England) Regulations 2021 [S.I. 2021/284] were published and laid before Parliament on 10 March 2021. This legislation has the effect of extending the period during which the longer minimum notice periods in England apply, until 31 May 2021. It accomplishes this outcome by amending paragraph 1(1)(b)(i) of Schedule 29 of the Coronavirus Act 2020. In Wales, the longer minimum notice periods are required until 31 March 2021, although amendments to this may indeed be announced in due course, before the end of the month.
That means that in England, s21 notices must (until at least 31 May 2021) continue to give tenants 6 months’ notice before proceedings may be commenced, and most s8 notices must also give just as long, save for Schedule 2 Grounds 7, 7A, 7B, 8, 10, 11, 14, 14A, 14ZA and 17, where shorter notice periods apply.
The announcement puts the proposed legislative change at odds with current FCA Tailored Support Guidance to mortgage lenders, which states that mortgage lenders may obtain possession orders (paragraph 7.2) but may not enforce them absent exceptional circumstances, such as the borrower’s consent, until 1 April 2021. Draft Tailored Support Guidance was published last week by the FCA for which the consultation closed at 10am on 10 March 2021. It is anticipated that the finalised Guidance may now be amended before it is published.
LPC Law has been informed by High Court Enforcement Officers of the details of their standardised process for bailiff enforcement in residential evictions. When making an Order for Possession, the Court will record in the Order if it is satisfied that the Order falls within one of the exemptions (specifying which regulation). The High Court Enforcement Officers have stated: “This includes the exemption for rent arrears, although in this instance the Claimant will need to provide a detailed calculation of rent arrears showing precisely how they meet the definition in the exemption. The Order obtained must clearly show that the case falls under an allowed exemption.”
If the Order does not contain this direction, then an on-notice N244 application notice will be required, for the court “to declare itself satisfied of the following matter set out at (specify which paragraph of Regulation 2), namely (specify the matter).” This application will be listed for hearing ostensibly on the court’s next possession day, although it will be subject to the listing priorities set out in the (then) Master of the Rolls’ “POSSESSION PROCEEDING LISTING PRIORITIES IN THE COUNTY COURT”.