Renters Reform Roundup for Registered Providers
May 30, 2023
On 17 May 2023, the Government published its much-anticipated Renters (Reform) Bill. Already, there has been talk that the Secretary of State, Michael Gove, is considering backtracking on onerous reforms affecting student lets. But assuming the current draft is enacted, what does it mean for the social housing sector? What are the key changes housing associations need to be aware of?
Here are five things we could soon be saying hello and goodbye to.
1. Farewell, fixed-term tenancies
There will be no such thing as a fixed-term assured tenancy. These will be abolished and replaced by periodic assured tenancies with a maximum rent period of 28 days.
Any fixed-term tenancy that is longer than 7 years will cease to be an assured tenancy. That means the procedure for gaining possession for those will be through forfeiture, not the Section 8 Grounds for Possession.
2. Adieu, assured shorthold tenancies
Announcing the Bill, the Government referred to the reforms as a “once-in-a-generation overhaul of housing law”. If a generation is around 30 years, then perhaps nowhere is that claim more apt than in the abolition of assured shorthold tenancies. Introduced in 1988, the assured shorthold tenancy turns 35 this year.
The most significant consequence of the reform is to remove landlords’ ability to gain possession by serving so-called 'no fault' Section 21 notices.
3. So long, starter tenancies
Another consequence of assured shorthold tenancies departing the scene is that it will no longer be possible to offer a starter tenancy to a new tenant. Without assured shorthold tenancies, there can be no starter period with less security of tenure.
4. Greetings, extended grounds for possession
New mandatory grounds
- A superior landlord is seeking possession from the private registered provider of social housing (new Ground 2ZA).
- A tenancy was granted due to the tenant’s employment, which has now come to an end. This is currently Ground 16 but becomes a new mandatory ground (Ground 5C). New Ground 5B also provides for possession where the dwelling is required to be let to someone who meets employment requirements.
- The property is needed for supported accommodation (Ground 5E) or it was let as supported accommodation for move on and support services have since ended (Ground 5F).
- The property was let to help a local authority with its homelessness duty but is no longer required for that purpose (Ground 5G).
- Possession is required because of enforcement action being brought by the local authority (Ground 6A).
- Finally, there is a new ground for repeated rent arrears (Ground 8A). This applies where at least 8 weeks’ rent remained unpaid for at least 1 day on at least 3 separate occasions in the last 3 years.
Changes to existing mandatory grounds
- Ground 8 is to be amended. When calculating rent arrears, you are to exclude any amount that is unpaid because the tenant has not yet received universal credit where they are entitled to an amount for housing.
Discretionary grounds
- The reach of Ground 14 (anti-social behaviour) will be extended. In the expanded version, “likely to cause” nuisance or annoyance is replaced with “capable of causing” nuisance or annoyance. Generally speaking, this introduces a wider ambit, although this will be open to argument in case law.
- New Ground 18 enables landlords to seek possession where a tenant in supported accommodation has unreasonably refused to co-operate with support services.
You can find a useful summary of the revised grounds for possession and notice periods in Annex B of the Explanatory Notes to the Bill.
5. Good day, new notice periods
Notice of seeking possession
As well as a new form of NOSP, which will be published by regulations, there will be new minimum notice periods.
- The notice period for Grounds 8, 10, and 11 is increased from 2 weeks to 4 weeks.
- Landlords can begin proceedings immediately for Ground 7A (severe ASB/criminal behaviour).
- However, a possession order cannot take effect until 14 days after a Section 8 notice was served if the only grounds of possession established are either or both of Grounds 7A and 14.
Notice to quit
- A tenant can give a notice to quit at any time. For assured tenancies, the standard period of notice will be two months, but a landlord can agree to a shorter period.
- A tenant can withdraw their notice to quit if both the landlord and tenant agree in writing.
All change? Watch this space
The Bill is only at the first reading stage in the House of Commons, so the extent to which the proposed changes become law remains to be seen. But the indications are that housing associations will need to make wholesale changes to their tenancy agreements and policies and procedures (particularly around starter tenancy periods and what grounds you will/can use).
If you would like advice on your existing agreements or any other aspect of housing management, contact us today to speak to a member of our team.
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ASB Awareness week is a good time for a reminder of where we currently are with notice periods and the use of notices relating to anti-social behaviour for possession proceedings in the ever changing legal landscape. We set out below 5 key facts to know. #1 Prescribed format of notices Until 30 September 2021, the Form 3 (Section 8 Notice Seeking Possession or NOSP) and Form 6A (Section 21 notice) are in an amended format. The current versions are on the gov.uk website. Given the changing landscape, it is safest to use the notices published on this website rather than relying on saved templates on your systems. Assured tenancy forms - GOV.UK (www.gov.uk) #2 Notices served using Ground 14 of Schedule 2 of the Housing Act 1988 (discretionary ASB ground) The notice period can be immediate (subject to your tenancy agreement promising a longer period) where you are using Ground 14. This is even the case when it is combined with other grounds. The one exception to this rule is when using Ground 7A in addition to Ground 14 (see #3 below). #3 Notice served using Ground 7A of Schedule 2 of the Housing Act 1988 (mandatory ASB ground) The notice period has to be 28 days or a month (depending on whether the tenancy term is periodic or fixed). This is even the case where it is combined with any other grounds. #4 Notice served using Ground 14A of Schedule 2 of the Housing Act 1988 (discretionary Domestic Violence ground) Where you are not using Ground 14A, the notice period has to be 2 weeks. However, if used alongside Ground 14 and/or Ground 7A the rules around notice periods using those grounds apply (see #2 and #3). #5 Section 21 notices Until 30 September 2021 a Section 21 Notice needs to be 4 months in length and cannot be enforced 8 months after it is served. **It should be noted that this guide states the law as it currently stands, and it could be subject to further change or extension by the Government. Legal advice should be sought for each case dependent on the date you take action.
On 1 October 2020, Civil Procedure Rule 81 was completely replaced with new rules covering all contempt applications and proceedings. The aim of the Civil Procedure Rules Committee was to streamline the existing rules and make them more straightforward. That does have some consequences for applications for breach of Injunction. Some key point to note are: CPR 81 now sets out clearly what is needed in a contempt application in all circumstances. Any reference to ‘applicants’ and ‘respondents’ is replaced with ‘claimant’ and ‘defendant’. A Circuit Judge is to hear all applications. This is a change from the previous position where District Judges could hear contempt applications for breach of injunction for anti-social behaviour. We do not know if this is intentional. It could be subject to change when the full consequences are considered further and the amount of work this creates for Circuit Judges is considered. *[Please see update below in relation to element]* Several warnings/statements informing the defendant of their rights have to be included in the application for contempt, this includes (but is not limited to): A statement that the defendant has the right to be legally represented; A statement that the defendant is entitled to a reasonable time to obtain legal representation and apply for legal aid which may be available without any means test; A statement that the defendant may be entitled to the services of an interpreter; A statement that the defendant has the right to remain silent and to decline to answer any question where the answer to it may incriminate them; A statement that the court may proceed in the defendant’s absence if they do not attend. A statement that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court A statement that the court will sit in public, unless and to the extent the court orders otherwise, and that its findings will be made public. The rules also confirm that the Court has the power to issue a bench warrant to produce the defendant at any directions or substantive hearing. Evidence still needs to be by way of Affidavit, unless the Court rules otherwise. The new rule 81.4 does say the Court can order otherwise which is progress from the previous provision but a party will have to apply for permission for this. All advocates and Judges have to appear robed. It should be noted there are no transitional arrangements between the old rules and these new rules. Accordingly, any on-going contempt proceedings need to be considered in light of the new rules and compliance with the new rules may now be needed. New forms There are also new Court forms to support these changes. In particular, there is a specific Contempt Application form (N600). This already includes all of the warnings/statements that have to be given to a defendant on making the application. *UPDATE NOVEMBER 2020* The issue regarding District Judges being unable to deal with breaches of Anti-Social Behaviour Inunctions by way of committal applications has now been addressed. When the Civil Procedure (Amendment No. 6) Rules 2020 come into force on 27 November 2020 it will allow District Judges to deal with such applications.
Issues with access are not new for housing providers. However, the pandemic, and resultant lock-down, have increased the amount of instances of access not being granted for essential appointments; sometimes where they involve serious health and safety concerns. Below are our top tips for access injunctions and how to present the best evidence to show you need access even during the pandemic: • Include details in your witness evidence on the age of the occupants, details of dependants and any known vulnerabilities or illnesses. • Confirm whether you know anything about how Coronavirus may have impacted on the tenant's decision not to allow access. • Describe what protection your contractors are putting in place (PPE etc) and how this has been communicated to the tenant. • Include details of all of your contact with the tenant and how alternative arrangements have been attempted. • Emphasise why this property/occupant is at especially high risk without access being given. • Make reference to the Health and Safety Executive/Gas Safe Guidance that essential works and servicing in tenanted property should still go ahead at the moment, subject to a risk assessment. • Where the tenant or occupants are vulnerable but access is still required, discuss with a manager whether to proceed and evidence any note of your discussion to show why proceeding to court is justified and proportionate in all of the circumstances of the case. At the moment, any template witness statements you may have used prior to the pandemic may accordingly need updating. They will need more detail than they previously did in order to satisfy a Judge why access is needed and that the occupants are sufficiently protected during any appointment.