Protection from eviction: s.8 and s.21 notice periods for possession of residential tenancies restored but Breathing Space may prove a further hurdle

The temporary provisions brought in to protect individuals from the threat of eviction during the pandemic have been brought to an end – handing back some power to landlords but necessarily putting pressure on individuals findings themselves in default.

Section 8 notices apply when residential tenants are in breach of a tenancy agreement, whereas section 21 notices allow landlords to evict tenants without any reason at any point during a tenancy without a fixed end date or at the end of a fixed term tenancy.

Summary of the changes of the notice periods throughout pandemic

The increased notice periods for seeking possession in respect of most types of residential tenancies brought in by Schedule 29 of the Covid-19 Act 2020 (CA 2020) (which were varied as the pandemic unfolded – summarised below for England) returned to the pre-pandemic lengths with effect from 1 October 2021 under the Covid-19 Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (2021 Regs).

*subject to the power reserved to the government by the 2021 Regs to change the notice periods until 25 March 2022.

The above notice periods have been (and continue to be) subject to various exceptions, including rent arrears (which as noted above has its own timeline) and where the tenant has engaged in anti-social behaviour.

Debt Respite Scheme

During the pandemic we have also seen the introduction of the Debt Respite Scheme (introducing a Standard Breathing Space and a Mental Health Crisis Breathing Space). For tenants who apply for a Breathing Space a section 8 notice on the grounds of unpaid rent arrears due up to the start of the Debt Respite Scheme cannot be served and possession of a property cannot be taken by the landlord serving notice. The Debt Respite Scheme does not affect any other grounds for section 8 or section 21 notices.

Our view

While good news for residential landlords, who have been forced into greater forbearance during the pandemic, the lifting of the enhanced protections from eviction will clearly be keenly felt by some tenants, who will need to review their own position. Both individuals and landlords ought to be aware of the effect of the Debt Respite Scheme on the eviction process and advice should be sought before taking any action.

For further information on this update, please contact a member of our Restructuring & Insolvency Team or our Real Estate Team or visit our dedicated CIGA & beyond hub.