Covid-19 Landlord Q&A

Authored by ARAG

We realise that these are exceptionally stressful times for anyone renting a property and it can really help to have all the relevant information in one place when you are trying to navigate swiftly changing legislation.

To help with this, we have put together some information on the questions that are most often being asked by callers to our legal advice line at the moment.

What support are you offering landlords during this epidemic?

First, even if all rental payments have been made, we can provide you with template documents and legally sound correspondence that will enable you to initiate discussions with your tenant in a reasonable and structured way, and to create a deed of variation to reflect any changes to the terms of the rental agreement that may be agreed. If necessary, this can be followed up with support from our specialist property law firm who can help negotiate a legal agreement.

While trying to evict a tenant in the current circumstances would be both morally wrong and legally difficult, some tenants may want to negotiate an end to their tenancy if, for example, they need to relocate or have alternative accommodation to move into. In these circumstances, it may be possible to negotiate a deed of surrender, which would allow them to exit the tenancy on mutually agreed terms.

If you believe that you may be in the early stages of a potential problem or there is a small amount of arrears, our approved legal specialists can help them to explore options such as repayment plans or a deed of variation or surrender, that fits your circumstances.

Even if neither the extension to 3-month notice periods nor the suspension of possession proceedings is extended, the courts are likely to have significant backlogs of work to get through. At the same time, judges are likely to look less favourably on landlords who have not acted reasonably and shown sympathy towards their tenants’ predicament. So, reaching a workable compromise with their tenants is likely to be every landlords’ best option.

If you are an ARAG policyholder, you can access this support by calling either the Legal advice helpline number or the Claims number in your policy wording.

Now that the Coronavirus Act 2020 has passed, how does this affect Residential Landlords?

This legislation will have a significant impact on landlords’ rights to evict a tenant. The government has released guidance on the legislation but can be summarised as follows:

The Act has not stopped landlords exercising their right to serve a notice requiring possession on their tenants. In short, the legislation requires landlords to give a longer notice period.

From 26 March to 30 September 2020 landlords can still serve a notice on their tenant. The effect of the legislation is that all notices have been extended to a three-month notice period to end the tenancy. So, if for example, your tenant defaults on their rent, you may be in a position to serve either a Section 8 or 21 notice, but the right to enforce is only after the new three-month period.

If I have served a valid notice prior to this legislation coming in, can I start possession proceedings?

In addition to the measures in the Coronavirus Act 2020, the Judiciary, with the agreement of the Lord Chancellor, has issued a Court Practice Direction to stop possession claims from progressing.

This applies to all possession claims for England & Wales and means that all court action for possession cases are suspended for 90 days from 27 March 2020.
The government guidance states:

The suspension will apply for 90 days from 27th March 2020, to all housing possessions proceedings in the rented, leasehold and home ownership sectors. This action is in line with public health advice, which has advised against nonessential movement in response to coronavirus.

This is will also affect cases already issued, so if you have a case underway speak to your claims handler as you may need to take additional steps. If you are an ARAG UK policyholder and are considering issuing a notice, speak to our legal advisers via the number in your policy.

What if I already have a repossession and rent guarantee claim underway, will that continue to be paid?

All current possession claims in the court system have been suspended until 26th June. For discussion on individual claims, please contact your claims handler who will advise how to proceed. This may include steps such as attempting to agree a payment plan or temporary variation to the tenancy agreement. As with any claim these are subject to ongoing prospects of success.

What happens after the three-month eviction ban is ended if my tenant still doesn’t pay their rent?

Provided your tenant is in the requisite amount of arrears, either a Section 21 notice, a Section 8 notice, or both, can be served with court proceedings for possession being issued in the normal way after the 90 period. If any notice served expires prior to the eviction ban being lifted, you must wait until 26th June before court proceedings can be issued. There are likely to be additional steps required as the government have suggested they will amend the pre-action protocols required to move to repossession.

• The government is working with the Master of the Rolls to widen the existing ‘pre-action protocol’ on possession proceedings for social landlords, to include private renters and to strengthen its remit.

• This will ensure that private sector landlords reach out to tenants to understand the financial position they are in before taking possession action through the courts once the three-month delay on issuing eviction proceedings has ended.

• It will encourage landlords and tenants to work together to agree an affordable rent repayment plan if their tenants fall into rent arrears.

We will post further updates and advice once the government has clarified the detail.

What are the alternative solutions should my tenant default on their rent?

It is likely that some tenants will default on rent due to a fall in income. An alternative to serving a notice requiring possession is to enter into a temporary agreement with your tenant for a reduction in rent for a short period with a payment plan to pay off the arrears.

As per the answer to question one, if you believe that you may be in the early stages of a potential problem or there is a small amount of arrears, our approved legal specialists can help you to explore options such as repayment plans or a deed of variation, that fit your circumstances.

If you are an ARAG customer, you can access this service by calling the legal advice helpline or claims number in your policy wording.

If I am contacted by my tenant regarding a maintenance issue but they have coronavirus or are self-isolating, what is my obligation to the tenant?

Your legal obligation to carry out maintenance has not changed. You must take all reasonable steps to carry out maintenance if you are contacted by your tenant. The key is to plan ahead. If someone is self-isolating, then book in a time that suits all. If external maintenance is required, then (with the tenant’s permission) you can do this even if the occupants are self-isolating.

The Government guidance is:

It has never been more important that landlords and tenants take a pragmatic, common sense approach to resolving issues. Tenants should let their landlords know early if there is a problem and landlords should take the appropriate action.

We understand current restrictions may prevent routine and obligatory inspections. While resources are stretched, we are recommending a pragmatic approach to enforcement from local authorities. This should mean that tenants who are living with serious hazards that a landlord has failed to remedy can still be assured of local authority support.

Landlords should also know they should not be unfairly penalised where COVID-19 restrictions prevent them from meeting some routine obligations.

What happens if I can’t find a contractor who is willing to attend a property due to the occupants self-isolating?

Again, the key is planning this in. Build up your list of contractors and check their status/ability to work regularly.

Should I be proactively contacting my tenants about reporting any maintenance issues?

Yes. Your obligations to carry out maintenance or perform checks such as gas safety certificates remain the same. Plan these in good time, taking into account any tenant self-isolation period. Encourage your tenants to contact you as soon as an issue arises so that you can plan in repairs.

If you are unable to gain entry to the premises, keep a record of the reasons why you have not been able to enter the property and of your attempts to contact the tenant. If for any reason the tenant is unwilling to grant access to the property or does not respond to your requests, ensure you keep full records of the attempts to contact and any reason why you have not been able to enter the property and carry out the required maintenance.

The government guidance is:

"Good management requires regular review and maintenance of a property, but we understand that planned inspections may be more difficult at this time. However, that is no reason to allow dangerous conditions to persist.”

In short, be pro-active with your tenant and ask them to report issues as soon as they arise so that you can prioritise the most urgent issues.

What if a landlord cannot carry out a check or follow up work due to the COVID-19 pandemic?

Despite the current crisis, landlords are still required to comply with the law. If you cannot carry out your obligations, you must demonstrate you have taken all reasonable steps to comply.

If you cannot gain access to the property due to the restrictions in place, or there are no available contractors to carry out the necessary work, it is recommended to keep all evidence of attempts to do so and any correspondence with the tenants.

How can I carry out right-to-rent checks when we are all being advised to self-isolate or practise social distancing?

The legislation has been temporarily changed here. As of the 30th of March 2020, the following temporary changes have been made:

• Checks can now be carried out over video calls
• Tenants can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
• Landlords should use the Landlord’s Checking Service if a prospective or existing tenant cannot provide any of the existing documents

The full government update can be found on their website.

Can I continue to undertake inspections during the social distancing recommendations?

Yes, but this is not a legal obligation. You may need to consider alternative dates or alternative methods such as WhatsApp video calling.

Can I move a new tenant in?

Yes, people who want to move home can do so. The guidance states: Private landlords and letting agents should not conduct viewings in properties where tenants are symptomatic or self-isolating, or where it has been determined that they are clinically extremely vulnerable and are shielding.

In other cases, where viewings can proceed, they should be conducted in line with the guidance on viewings earlier in this document. Any visits to a property must be made in accordance with government’s guidelines on working in other people’s homes and social distancing.

What if I have served a valid section 8 or 21 notice but my tenant is too ill to leave the property?

The government has introduced legislation to stop new possession proceedings. Open a dialogue with your tenant to see if anything can be done to help them move out. If you accept payment from your tenant this needs to be accepted as a ‘compensation payment’.

Furthermore, the government is encouraging all house moves to be delayed:
Home buyers and renters should, as far as possible, delay moving to a new home while emergency measures are in place to fight coronavirus.

Therefore, you might want to discuss an extension of the tenancy or an agreed future date for departure. You may even want to enter into a new tenancy with your tenant.

For further help with this scenario it is recommended you take legal advice as there are time limits for enforcing a section 8 and 21 notice. Legal advice can be accessed by calling the Legal advice helpline number or the claims number on your policy document.

What is a rent holiday?

This is an agreement between a landlord and tenant where the tenant is allowed to miss paying rent for a period of time without fear of being served with a section 8 or 21 notice.

These agreements can be informal, but it is highly recommended that a landlord agrees this in writing with conditions (agreed holiday period and agreed re-payment of arrears period), so that action can be taken if the agreement is breached.

This does not mean the tenant has this period rent free, but rather that there is an agreement for the payment or part of the payment to be deferred to a later date.

What if I cannot meet my mortgage repayments due to tenant’s failure to pay rent?

The government will be extending ‘mortgage holidays’ to “Buy to Let” mortgages to give landlords breathing space during these difficult times.

Where a tenant is unable to pay their rent in full you should discuss this with your lender.

How do I know if I should claim?

During the current COVID-19 period, the government recommends that all landlords do what they can to work with their tenants to help keep them in their homes.

If you are an ARAG customer, you can get help with this process by calling either the helpline number or claims number in your policy wording.