COVID-19 Challenges for Landlords
As a result of the current pandemic, landlords may be experiencing difficulties in how to manage issues relating to both residential and commercial tenants. The introduction of the Coronavirus Act 2020 and the Private Tenancies (Coronavirus Modifications) Bill 2020 (currently being accelerated through the NI Assembly) will have implications for landlords as to how they may deal with tenancy issues at present and ongoing guidance from the Office of the Lord Chief Justice will impact upon current and prospective legal proceedings involving landlord and tenant issues.
Rental Arrears
Social Housing Sector
The Department for Communities (“the Department”) currently has an agreement in place with all registered social housing associations and the Northern Ireland Housing Executive (“NIHE”) that any social housing tenant facing difficulties paying rent during the current COVID-19 pandemic will not be evicted.
Any ejectment proceedings currently progressing through the Courts in relation to arrears will likely be adjourned generally until after the pandemic, while the Lord Chief Justice has confirmed that only “urgent” cases will be dealt with by the Courts and, in most cases, possession proceedings will not fall within this category.
Any cases which have already progressed through the Court system and have reached enforcement stage will come to a halt as the Enforcement of Judgments Office (“EJO”) has now suspended all work relating to enforcement of money and repossession judgments. Evictions will not therefore be scheduled in the near future.
Private Rental Sector
The Communities Minister, Deirdre Hargey MLA, has recently fast-tracked a Bill through the NI Assembly in order to extend the ‘notice to quit’ period and better protect the interests of private tenants. Known as the Private Tenancies (Coronavirus Modifications) Bill 2020, the legislation essentially mirrors that recently brought into effect in England & Wales which will require private landlords to provide private tenants with 12 weeks’ notice to quit before being able to action possession proceedings. This will remain in place until 30 September 2020 with an option to extend this period if deemed necessary.
However, the legislation provides that if the notice period is extended beyond 12 weeks, exceptions will be made for landlords who need to live in their own property and for cases of anti-social behaviour. If the EJO continues to suspend all evictions, it is not clear what practical effect these exceptions will have.
It is to be noted that the legislation, once it receives royal assent and is brought into effect, will not apply retrospectively. The Minister has however warned landlords against proceeding with Notices to Quit during this time.
The Minister has also announced support for buy to let landlords by way of applying for a 3-month mortgage holiday while private renters may be able to access financial assistance through Universal Credit and Discretionary Housing Payments.
Business Tenancies
There is now some protection for commercial tenants by virtue of section 83 of the Coronavirus Act 2020 which effectively imposes a moratorium on evictions, preventing landlords from exercising their right to forfeit a lease due to the non-payment of rent by tenants. The moratorium will remain in effect until 30 June 2020 or later, if the period is ultimately extended by the Secretary of State. In addition, non-payment of rent during this time cannot be relied upon by landlords as justification for opposing any applications for lease renewals by tenants.
It is important to note that the protection does not extend to any other breaches of tenancy. Tenants are therefore required to comply with their obligations and covenants under the terms of the lease. They will also remain liable for any unpaid rent once the moratorium is lifted.
Gas Servicing
Obtaining access to properties in order for contractors to carry out annual servicing to gas boilers (which remains a legal obligation for landlords) has often proven difficult for landlords in recent years. This difficulty has been compounded by the current crisis with many tenants refusing to provide access, possibly due to fears over contracting COVID-19 or due to tenants self-isolating.
Currently, the statutory obligation requiring landlords to carry out gas safety inspections every 12 months has not been removed or amended while the Department continues to reject calls from the housing sector for checks to be extended beyond 12 months or suspended altogether.
The Health & Safety Executive (“HSENI”) has confirmed that gas safety checks must continue where it is safe to do so, provided that the guidance on social distancing is adhered to.
The HSENI advises that tenants should be contacted, both verbally and in writing, before gas safety checks are carried out to ascertain whether a tenant is self-isolating. A landlord must be able to demonstrate that they took all reasonable steps to comply with the law and ought to clearly record and retain details of all contact attempts with the tenant in order to obtain access. Landlords are also being encouraged to arrange their annual gas safety checks as early as possible, as a contingency against either tenants being in self-isolation in the future or gas engineers being unavailable due to illness.
Further guidance and recommendations for best practice for landlords can be found at:- https://www.hseni.gov.uk/articles/covid-19-workplace-safety-guidance
Anti-Social Behaviour
Although possession proceedings have not been formally suspended in the same way that has occurred in England & Wales (where all housing possession cases have been suspended for 90 days), evictions will not be carried out as the EJO have suspended all ongoing evictions and the Courts are not currently dealing with “non-urgent” matters, as noted above. However, an issue arises in relation to proceedings brought on the grounds of anti-social behaviour (“ASB”) which can often involve very serious incidents that require urgent redress.
With the suspension of enforcement action, attempting to accelerate possession proceedings due to serious ASB (in order to obtain an Order for Possession) will have little impact given that evictions are not currently being carried out; however, there may be alternative remedies available to landlords in the form of an emergency injunction.
While the PSNI and local Councils are often the more appropriate agencies to deal with ASB in respect of a private tenant, there is scope for Housing Associations and NIHE to commence injunction proceedings against a tenant under Article 26 of the Housing (Northern Ireland) Order 2003. These proceedings are usually dealt with on an urgent basis and can often take place “ex parte” i.e. without notice being provided to the Defendant. Often a landlord will seek an injunction to restrain a tenant from engaging in any further ASB or, in very serious cases, to restrain a tenant from remaining at or entering the property. It is to be noted that an injunction represents interim relief only, therefore, the landlord may have to continue with possession proceedings in order to lawfully recover possession of the property once the Courts are dealing with all matters again.
New challenges have arisen for landlords as a result of the COVID-19 pandemic in relation to how they may take appropriate action in respect of tenants refusing to self-isolate or adhere to social distancing rules in order to safeguard public safety. The first “Coronavirus Injunction” was recently dealt with in England. A Manchester Housing Association, Mosscare St Vincent’s, successfully obtained an injunction against a tenant who was hosting large parties at the premises and continuing to allow excessive numbers of visitors, in breach of the government guidelines on social distancing.[1] The terms of the injunction prevent the tenant from allowing any visitor to the property (apart from their children) until Government restrictions have been lifted.
Whilst enforcement powers available to the PSNI under the Health Protection (Coronavirus Restrictions) Regulations (Northern Ireland) 2020 may also be of assistance in these types of cases, it is not difficult to envisage similar civil injunctions arising in NI.
Should you require any further information or advice, please contact any members of the litigation department who will be happy to assist:-
Christopher.Duffy@edglegal.com
Marie-Louise.Lowry@edglegal.com
Tel: 028 9024 5034
Copyright 2020 Elliott Duffy Garrett
Every care has been taken in the preparation of this bulletin; however readers are advised to seek legal advice in relation to specific issues, particularly given the quickly evolving nature of developments during the COVID-19 pandemic.
[1] The Housing Association relied on the Antisocial Behaviour, Crime and Policing Act 2014 in order to commence injunction proceedings which does not apply in NI.
