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Insights

Covid-19 Housing Management Update

Posted on 27th March 2020 in Affordable Housing, Coronavirus Pandemic

Posted by

Sarah Schooling

Associate and Solicitor
Covid-19 Housing Management Update

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The Government have asked that everyone work from home where possible. With this in mind, we will all be working from home. We are therefore available should you have any queries or problems. As usual, just email in or give us a call.  We remain available to undertake court work including applying for injunctions and possession claims.

Practical Advice

You should:

  • Delay non-essential repairs/maintenance works to Properties Consider what is ‘essential’ work for Housing Officers – many issues can be investigated from home, new tenants shouldn’t be viewing properties, so clearance of a void property is not essential work
  • Issue any of your staff who are having to leave home with a letter confirming the purpose of their being outside (i.e. to carry out essential repairs is)
  • Warn tenants about the delay of non-essential repairs and agree a flexible time scale when the work will be done, if possible. By a pre-recorded message on your repairs helpline or a notice on your web site.
  • Post official notices in HMOs (available on Government website)
  • Offer additional support for vulnerable tenants but, again, subject to a risk assessment – some may just appreciate a phone call a couple of times a week to make sure they are okay, particularly if they have no one else to call on. A Care Act or Mental Health Act Assessment might be more appropriate than landlords providing the support themselves.
  • Signpost tenants to government advice about their health and safety
  • Approach each tenant’s individual circumstances sympathetically
  • Ensure that records are kept of all proposed visits/reasons why they could not be actioned.
  • Where you have a tenant, who is a sole resident, check your records as to whether they have informed you of a next of kin or who they have appointed to act for their estate if they die. This would be a time to look to update those records (sensitively of course)

It is important that Landlords keep in touch with tenants during this time whilst also avoiding unnecessary visits. This can be achieved by contacting tenants via telephone calls, emails and text messages rather than visiting them in person.

Repairs

Government advice (from 26 March 2020) is:-

Landlords remain legally obligated to ensure properties meet the required standard – urgent, essential health and safety repairs should be made. An agreement for non-urgent repairs to be done later should be made between tenants and landlords. Local authorities are also encouraged to take a pragmatic, risk-based approach to enforcement.

It should be borne in mind that a report to a landlord of a repair engages their repairing obligation but they have a reasonable time in which to carry out the repair. For non essential repairs, you will need to log the repair on the system and agree, as far as you are able, a time scale in which the work will be done. It may be that you need to keep this timescale under review and advise the tenant if it needs to be extended (or carry out the repair if it has become essential). Good recording and an effective diary system is vital during this time. Promotion of any self repair (often called the “Right to Repair”) scheme a landlord is a good idea.

Access

Before carrying out any works at a property you should consider the Guidance from Public Health England and carry out a thorough risk assessment which encompasses risk on the part of the landlord, employee or tenant. If a family is self-isolating do not enter the Property unless you really must.

Any employees who do attend should follow social isolation and hygiene advice. Gloves and other Personal Protection Equipment (PPE) should be provided to any employees as landlords are obliged to ensure a safe system of work for their employees. Gloves should be changed between property visits and hands washed before a new pair is put on. Landlords should obtain assurances from their Contractors that they will provide their own employees with PPE.

Tenants should be advised to stay out of any areas where Contractors may be working.

A Tenant’s obligation to provide access is only activated when you give them notice of an appointment. If you ask for them to tell you when it is convenient to attend their home and they fail to do so, they are not in breach of their tenancy.

Access Injunctions are still available and the landlord can rely on any clause they have in the tenancy requiring the tenant to give immediate access in the event of an emergency.

If tenants refuse access, or contractors refuse to attend (or if access is assessed to be too high a risk), be sure to keep a written record of this. Clear and concise management records for each Property will assist if there is a surge in disrepair claims following this crisis (we anticipate there may be when the canvassers can start door knocking again).

You might find that sourcing contractors or inspectors at this time is very difficult and essential works might have to be delayed. If this is the case, you could contemplate reducing rent for a tenant where repairs or maintenance works have been delayed considerably and it impacts on the use and enjoyment of their home. This would mitigate the effect of a disrepair claim should a Tenant raise one in the future.

Payment of Rent:

Tenants are not entitled to a ‘rent holiday’. For those who cannot afford to pay their rent, it is for Landlords to decide if they are going to offer a reduced rent, rent-free period or an extended period of time before they will start chasing for repayments.

Tenants should be signposted to where they can receive support in paying their rent and accessing benefit payments.

Landlords need to carefully document all the steps they have taken to assist the Tenant and recover the arrears during this period. The Pre-Action Protocol for rent arrears may be amended but, we do not know the detail of this. Further, the Pre Action Protocol may be extended to private landlords.

We anticipate, that Courts’, once fully functional, will be extremely reluctant to grant possession orders where the arrears have arisen due to this crisis. You will need to leave a suitable time for repayment of the arrears before pursuing a Court application.  

How are the Courts approaching COVID-19?

A .press release from the Ministry of Housing, Communities and Local Government appeared on their website last night (26 March 2020) containing the following (our emphasis):-

From tomorrow (27 March 2020) following a decision by the Master of the Rolls with the Lord Chancellors agreement the court service will suspend all ongoing housing possession action – this means that neither cases currently in the or any about to go in the system can progress to the stage where someone could be evicted. This suspension of housing possessions action will initially last for 90 days, but this can be extended if needed. This measure will protect all private and social renters, as well as those with mortgages and those with licenses covered by the Protection from Eviction Act 1977. This will apply to both England and Wales.

This appears to apply to ALL possession claims currently in the court system. It seems to suggest that this will also apply to evictions but more of that below.

In respect of other types of hearing, we don’t know but prior to the decision of the Master of the Rolls, we were being told that all imminent hearings (for this week) were adjourned and that hearings next week and beyond were being dealt with on an individual case by case basis and that we should call the day before or the morning of the hearing. Any cases where we are instructed which are not possession claims, we will call the court before the hearing and advise you whether the hearing is going ahead or not and how the hearing will take place.

Bailiffs

We are aware that the Bailiffs at Plymouth County Court, have been issued with a direction that all current warrant dates are to be vacated and new appointment dates will be issued for sometime in the future without the Claimant having to submit a further warrant request. We have not seen anything official to this effect but the Master of the Rolls decision yesterday would support such a direction being given across the country.

We are also aware that at Northampton County Court, Bailiff’s appointments are being cancelled for the foreseeable although they have provided no indication of when new appointments will be listed or whether a further warrant request will be required.

Please do check, your local arrangements, but it is unlikely that, at this time, any Bailiff appointments will be taking place.

Applications for a stay or suspension of an imminent warrant are being encouraged and prioritised. These are still being heard at some courts with both parties attending.

Notices

The Coronavirus Act, in force from yesterday (i.e 26.03.20), provides that, any notice issued, between now and 30 September 2020, will have a 3-month notice period applied to it. This applies to:-

  • Notices to Quit on Rent Act tenancies (all grounds)
  • Secure tenancies (all grounds)
  • Introductory
  • Flexible tenancies
  • Demoted tenancies
  • Assured tenancies
  • Assured Shorthold tenancies (which includes “Starter” or “Probationary” tenancies

Family intervention tenancies are NOT included. Neither are general notices to quit. So an NTQ given by a Tenant or issued by a Landlord for non-occupation (including death) remains at a 4 week notice period. Where a joint tenant has given notice to terminate the tenancy, a Landlord would still have a right to possession at the expiry of that notice, though this may not be possible to enforce given the delays in issuing possession claims.

The prescribed forms for Assured Shortholds (Form 6A) and Assured (Form 3) have been amended. Amended versions are here https://www.gov.uk/guidance/assured-tenancy-forms.

Service of Notices

Notices are validly served if they are sent by first class post. You need to:

  • Complete a Certificate of Service
  • Keep a copy of the signed notice and covering letter
  • Not on any case management system that a Notice was served

Serving Notices is not considered to be essential travel and therefore at this current time they should not be hand delivered to a property.

If you have a current email address for the Tenant, you can support your service by first class post by also emailing a copy to them. Email is not a method of good service at this time, so should not be relied on alone.

Injunctions and Committals

Injunctions are still available. We anticipate that court time will only be reserved for “without notice” applications. This would include situations where there is a risk of serious harm to a person. The Court is likely to deal with these by telephone hearings with documents being provided by email. The Injunction obtained will be an interim one with a hearing arranged for a later date. We anticipate that the return hearing date will be arranged for no earlier than 3 months but where the injunction is particularly restrictive of the Defendant’s lifestyle, the hearing might take place sooner and by telephone.

If the matter is urgent, question whether you are the most appropriate body to deal with it. If it is a criminal matter then it may be best to let the Police handle it.

Service of an Injunction (and Injunction Application) must be via personal service. Due to the risks of personally handing a document to an individual, we recommend that, as part of the Injunction Application, a term is sought that service can be carried out through the letter box or by email or text where you know that the Defendant checks and uses that email address or telephone number.

Where there is a power of arrest attached to an Injunction, the Police should arrest for a breach. They may, however, choose not to - they have other priorities at present. For serious breaches, the Police should be strongly encouraged to arrest. Once arrested, the Defendant needs to be brought before a Judge at a County Court within 24 hours (excluding Sundays). We anticipate such hearings will be dealt with by having minimal people in the Court room.

Where there is not a power of arrest, an application will be required to bring the Defendant before the court. Unless it is very serious (i.e. risk to life and limb), we anticipate the application will be listed for a time when Court’s are fully operational again. There is a risk that a committal application may become stale but this can be mitigated by seeking only a declaration of breach. A declaration is sufficient to engage the mandatory ground for possession.

If you have any questions arising from this or any housing, asset or leasehold matter, please do contact us.

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