Notice periods for seeking possessions of residential tenancies to return to pre-pandemic levels from 1 October 2021

At the outset of the COVID-19 pandemic, the Government introduced The Coronavirus Act 2020 (“the Act”) on an emergency basis. Schedule 29 of the Act centred around providing protection for tenants from section 8 and 21 of the Housing Act 1988, namely increasing the notice period required by landlords in possession proceedings.

Throughout the pandemic the notices required by landlords have fluctuated in line with Government decisions.

The Regulations

The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (the “Regulations”) came into force and amended Schedule 29 of the Act.

There have been numerous amendments since the implementation of the Regulations with the most recent being put before Parliament on 8 September 2021 (SI 2021/994).

As a result of these recent amendments, from the 1 October 2021 landlords can, for the first time since the outbreak of COVID-19, return to pre-pandemic notice periods when seeking possession of residential properties in England.

From 30 September 2021 the “relevant period” contained within Schedule 29 of the Act has been extended to 25 March 2022. This extension provides the Government with a backstop meaning that they retain the power to re-impose extensions for notice periods up until this date.

Use new prescribed forms from 1 October 2021

There will be an introduction of new and simplified prescribed forms of notice under section 8 (Form 3 - notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy) and section 21 (Form 6A- Notice seeking possession of a property let on an assured shorthold tenancy) of the Housing Act 1988, and section 83 of the Housing Act 1985 for fixed long-term tenancies. These forms will be available under 'Assured tenancy forms' on the Government website on 1 October 2021.

Please ensure that the correct version of the form is used from 1 October 2021, failing which the notice could be defective. The ramifications of this are that unless the court gives permission to dispense with service of the notice (which is only available for assured or secure tenancies where a discretionary ground is used) then the proceedings could be struck out and costs order made against the landlord.

Guidance notes for section 8 and section 21 notices – good practice for social landlords

The new versions of the section 8 and section 21 notices omit the lengthy guidance notes for landlords and tenants that formed part of the previous versions. Those guidance notes contained important information for tenants about topics including minimum notice periods and the circumstances in which a court would or would not have discretion as to whether to make a possession order. The guidance notes also contained important information for landlords about when each type of notice may be used.

The guidance notes are now set out in separate standalone documents available on the government website alongside the prescribed forms of notice.

The guidance notes do not form part of the new prescribed forms for notices under the latest statutory instrument (SI 2021/994). However, social landlords should consider it good practice to serve a copy of the relevant guidance notes with any notice when it is served. This would reduce the chances of a notice being held by the court to be invalid in the event of a future challenge to the Government’s removal of the guidance notes, and would demonstrate a responsible approach in ensuring the tenant understands the notice and eviction process as best as possible.

Over the course of the pandemic the prescribed versions of the notices have changed regularly and often with little warning. Social landlords should continue to take extra care that the version of any notice (and any guidance notes) they serve are the current version as found on the government website.