Thursday 3 September 2020

Registered providers of social housing will know that the two month period for Section 21 Notices has been extended – like the Section 8 Notice of Seeking Possession – for three months. Given the reported national spike in anti-social behaviour and the fact that possession, in reliance upon a Section 21 Notice, leads to a mandatory possession order, registered providers of social housing may be keen to rely upon the accelerated possession procedure more than ever before.

So, should you serve a Section 21 Notice and issue accelerated possession proceedings?

1. Is the tenant still in their probationary period of their tenancy? Has the tenant been a tenant for at least four months?

A Section 21 Notice cannot be served until an individual has been a tenant for at least four months. As such, if they are in the early stages of their starter tenancy, a three-month discretionary Notice of Seeking Possession may be a faster route to eviction.

2. Did the tenant receive an Energy Performance Certificate (EPC) and a Gas Safety Certificate (GSC) that were valid at the start of the tenancy, before they took up occupation of the property?  If not, are you in a position to rectify this before you serve your Section 21 Notice?

It has always been possible to provide the EPC retrospectively, prior to serving the Section 21 Notice. However, until recently, case law suggested that landlords could not remedy a failure to serve the relevant GSC in the same way. This has now changed. The recent Court of Appeal case of Trecarrell House Limited v Rouncefield [2020] EWCA Civ 760) has confirmed that as long as you provide a copy of the GSC, that was valid at the star of the tenancy, together with any subsequent GSC, you can serve a Section 21 Notice. However, this case may be appealed further and landlords keep this under review.

3. Are you on notice that the tenant has any disabilities?

Defences available to an accelerated possession claim are limited. However, where the tenant has a disability linked in some way to the behaviour you are attempting to address, they could argue the decision to recover possession is disproportionate. Therefore, ensure you have considered your duties under the Equality Act 2010 and document this. Where you are on notice of a disability and you are unsure whether your decision to seek a mandatory order can be justified, you may wish to consider other ways to remedy the behaviour. This could be a civil injunction or a Notice Seeking Possession that would allow the court to consider the reasonableness of your claim.

4. Has the tenant and their dependents been affected by COVID-19?

Practice Direction 55C, due to come into force on 23 August 2020, when the stay imposed on all possession claims, because of the pandemic, will come to an end, confirms that any new claim for accelerated possession, brought after 3 August 2020, must include a notice setting out what knowledge you have ‘as to the effect of the COVID-19 pandemic on the defendant and their dependents’.

If your answers to questions 1 and 2 above are ‘yes’, and you can demonstrate you have considered your duties under the Equality Act 2010 and that possession proceedings are warranted, accelerated possession may well be worth the effort. Even if the tenant has been ‘affected’ by the pandemic, there is nothing in Practice Direction 55C that gives the court the power to deny you a mandatory possession order on this basis. It might lead to the court granting a six-week possession order (the maximum time the court can give when ordering possession) but six weeks doesn’t feel like much when we have been in lockdown for so many months.

Sarah Rogers, Senior Associate (sarah.rogers@forbessolicitors.co.uk) and Sam Gorrell, Associate (sam.gorrell@forbessolicitors.co.uk), Housing and Regeneration Department, Forbes Solicitors

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