Since our last article on 17 December 2020 regarding the government’s decision to extend the ban on eviction of commercial tenants, further developments have been made.
The pandemic has continued into the new year and with new lockdown measures in place until at least 21 February 2021, the government has been reviewing and updating the restrictions in place in relation to the recovery of both residential and commercial property.
As previously reported, the moratorium on commercial landlords exercising forfeiture rights, statutory demands, winding up petitions and Commercial Rent Arrears Recovery proceedings which was due to end on 31 December 2020 were all extended to 31 March 2021.
Although the stay on bringing possession proceedings was lifted in September 2020, on 17 November 2020 the Government introduced a ban on the execution of writs/warrants of possession and the delivery of notices of eviction until 11 January 2021. Although eviction notices could have been served from 11 January 2021, charities and opposition parties called for more financial support for tenants in light of the revised lockdown restrictions. As a result, on Friday 8 January 2021, the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021/15 were put before parliament and are due to come in force on Monday 11 January 2021. Pursuant to this legislation, an extension of the eviction ban until 21 February 2021 will be introduced. In the event an order of possession proceedings is made, this will not be enforceable before 21 February 2021.
There is however, some positive news which will no doubt be welcomed by Landlords. With the new regulations, there is a crucial change which has been made to the exception to the ban where substantial rent arrears are concerned. Under the previous regulations, this was defined as arrears of at least 9 months’ rent on the date an order for possession was granted and rent that had accrued during the first lockdown, specifically after 23 March 2020, had to be disregarded for the purposes of this exception to apply.
The new regulations have retrained the exception for substantial rent arrears, the definition has been amended to being a minimum of 6 months’ unpaid rent and the prohibition on including arrears arising since the pandemic has been struck out completely.
Other important exceptions to the eviction ban, include:
- Trespass claims under CPR Part 55.5 (regulation (2)(2)(a); and
- Possession claims based on anti-social behaviour and domestic abuse grounds (regulations 2(2)(b) – (d).
Tenants are to note that under Practice Direction 55C, the impact of the pandemic on defendants of possession proceedings will nonetheless be brought to the attention of the court.
Robert Jenrick MP has stated that the date of 21 February 2021 is subject to further review. There is a likelihood that the nationwide lockdown will extend beyond this date and therefore the eviction ban will need to be kept under scrutiny to coincide with these measures.
If you are a commercial tenant or landlord requiring legal advice, please contact our expert team today.