John Healey, Shadow Housing Secretary, has published draft legislation which Labour is urging the government to adopt immediately, as part of a bill it will be introducing later this week for emergency Coronavirus related measures.

The draft legislation would apply to assured (including assured shorthold), Secure and Rent Act tenants who have failed to pay their rent as a result of the effects of the Coronavirus.

Where the tenant has failed to pay rent that was lawfully due between 1 March 2020 and 1 September 2020 and that failure to pay rent was, in any way, related to the effects of the Coronavirus the rent shall not to be treated as lawfully due for the purposes of:

(a) Schedule 15, Case 1, Rent Act 1977;

(b) Schedule 2, Ground 1, Housing Act 1985; or,

(c) Schedule 2, Grounds 8, 10, or 11, Housing Act 1988.

The effect of the draft legislation is that a landlord applying to Court for a possession order relying on these grounds for possession on the basis of rent arrears, will not be able to satisfy the ground (and the court will not be able to make a possession order) if the rent arrears have accrued as a result of the Coronavirus. 

It is pleasing to note that the effect of the Coronavirus on residential tenants and their security of tenure is being considered. However, is it necessary?

All of the grounds for possession, with the exception of Ground 8 in schedule 2 to the Housing Act 1988 are 'discretionary' grounds for possession meaning that the court must be satified that the (a) the ground is made out and (b) that it is reasonable in all the circumstances for a possession order to be made. The question of reasonableness is for the judge hearing the case to decide, on the facts of each case, but it seems in these unprecedented days of 'lock-downs' etc. that the judge may conclude that it is not reasonable in the circumstances for a possession order to be made.

Ground 8 is mandatory and therefore the court does not need to consider reasonableness. However, Ground 8 only applies where the rent is more than 8 weeks' in arrears. For social landords relying on Ground 8 they will be aware that eviction should be a last resort and a mandatory claim of this nature might be met with a proportionality defence.

This also assumes that the court service will be able to continue to process and hear claims for possession, which at the time of writing seems unlikely!

Finally, it should be noted that:

  1.  whilst the ground for possession will not be satisfied this will not stop the rent being owed to the landlord although the landlord will not be able to start a money claim before 1 December 2021; and
  2. The draft legislation would not prevent a landlord seeking possession of a property let on an assured shorthold tenancy following the service and expiry of a section 21 (2 month) Notice Requiring Possession.