Tackling anti-social tenant behaviour in your contracts.
Learning from south Liverpool’s ongoing crisis
On Tuesday 4 May 2021, the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 came into force, which provides a temporary period of relief from creditors, to help individuals in England and Wales with debt problems.
The Government has introduced a new prescribed Section 8 Notice (Form 3) which also came into force on Tuesday 4 May 2021. The amended form is available on the Government’s website and can be found here. This form is used by landlords where they wish to repossess a property let under an assured tenancy, an assured agricultural occupancy or an assured shorthold tenancy, in accordance with one of the grounds in Schedule 2 of the Housing Act 1988. The form must now include details of the Breathing Space Scheme.
The previously available form is now out of date and any Section 8 notice served between 29 April - 3 May bank holiday will be deemed to have been served on 4 May 2021, which means any notice served during this time period will be invalid and as such landlord’s will need to serve the new prescribed Section 8 notice again.
Many tenants may not be able to pay their rent, especially those hit by the Covid-19 pandemic and may ask for a Breathing Space. The Debt Respite Scheme prevents landlords from chasing unpaid debts, allowing tenants a “Breathing Space” to find a solution and bring their finances in order.
Standard Breathing Space
Mental Health Crisis Breathing Space
Any tenant may apply for the Breathing Space if they are unable to meet their debts, a specialist debt advisor authorised by the FCA will decide whether to award the breathing space. In regards to mental health application, an Approved Mental Health Professional will need to confirm the applicant is undergoing treatment.
Landlords will receive a notification via email or post if a tenant has been granted Breathing Space. The notification will confirm when the Breathing Space begins and will allow Landlords to monitor when the Breathing Space ends, so they are able to take action again. Landlords cannot contact the tenant during this period unless it is in relation to any other matter i.e. repairs or maintenance.
The tenant will still be responsible for paying the full amount once the Breathing Space ends as the Debt Respite Scheme will only apply to arrears built up in the past. Current rental payments will still be payable as the Debt Respite Scheme is not a form of payment holiday.
The new prescribed Section 8 Notice (Form 3) came into force on Tuesday 4 May 2021 and has been updated. The previously available form provides incorrect information in regards to notice periods. The amended form reflects the changes to possession procedures made by the new regulations, it makes it clear that court proceedings cannot begin earlier than 6 months from the date the notice is served except for serious cases.
Serious cases include anti-social behaviour, domestic abuse in the social sector, false statement, rent arrears to the value of 6 months’ rent, tenant death and where the tenant doesn’t have the right to rent under immigration laws.
Landlords must detail the specific grounds they are using to seek possession of the property. See Table 1 below for the minimum notice a landlord needs to provide for each ground.
If the case involves Ground 14 (anti-social behaviour), Ground 14A (domestic violence) or Ground 7A (conviction of a serious offence), then the notice period for these grounds will apply even if other grounds are being used. Where the landlord relies on multiple grounds (not including Ground 14 or Ground 7A) the notice will be the higher of the notice periods in relation to the grounds being relied on.
Landlords can apply to the court for a possession order if the tenant does not leave by the date specified in the form as the earliest date on which possession proceedings can be brought.
The form must now include details of the Breathing Space Scheme. Notice under Grounds 8, 10 or 11 cannot be served to the tenant where the tenant has advised the landlord of the Breathing Space unless permission has been sought from the county court where legal proceedings for the debt have begun or could be issued.
If you would like to create an up-to-date section 8 notice, read our detailed section 8 notice tutorial.
With the introduction of the Breathing Space Scheme, landlords must be careful when serving notice under the amended Section 8 form. The notice cannot be served for rent arrears and late payments if the tenant has been granted a Breathing Space and if not, court proceedings cannot begin earlier than 6 months from the date the notice is served except for serious cases. However, tenants should be aware that the Breathing Space is not a form of payment holiday as it only applies to arrears built up in the past.
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The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.
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