Breathing space and landlord notices in possession proceedings

Landlords cannot give notices for rent arrears included in a breathing space moratorium while the moratorium is in force, rules banning the notice depend on the tenancy type.

This content applies to England

Notices for rent arrears during the moratorium

The Debt Respite Scheme Regulations, also known as breathing space,[1] prevent service of a notice on rent arrears grounds during a breathing space moratorium and mental health crisis moratorium.

The regulations specify that certain notices must not be given during the moratorium if they relate to arrears included in the application. Other notices for rent arrears cannot be given because they are a step to enforce a moratorium debt. The protection only applies during the breathing space moratorium, so a notice relating to rent arrears can be given after the moratorium ends. A notice for rent arrears given during the moratorium is null and void. In some cases, the court has the power to dispense with notice if it is just an equitable to do so. A landlord must not issue a claim for possession or apply for a writ or warrant of possession for rent arrears included in the breathing space application during the moratorium period.

Extension of notice periods due to expire during the moratorium

Breathing space regulations state that if a deadline to take a step to enforce a moratorium debt is due to expire during the moratorium, that deadline is extended.[2] The new deadline is eight weeks from the end of the moratorium. This means if a notice for rent arrears was due to to expire during the moratorium, the landlord has up to eight weeks from the end date of the moratorium in which to bring a claim.

Secure tenancy notices

Secure tenants are protected from a notice on rent arrears grounds during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

To start the possession process, the landlord gives notice under s.83 Housing Act 1985 stating the grounds for possession. Ground 1[3] states rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.

Protection of moratorium

Breathing space regulations[4] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If the notice under s.83 states rent arrears as the ground, the notice must not be given during the moratorium for arrears included in the application.

The landlord can give a notice:

  • on ground 1 for another breach of tenancy

  • on any ground other than rent arrears

A possession claim on rent arrears grounds must not be issued during the moratorium in respect of a moratorium debt.

Assured tenancy notices

Assured tenants are protected from a notice on rent arrears grounds during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

To start the possession process, the landlord gives notice under s.8 Housing Act 1988 stating the grounds for possession. Grounds 8, 10 and 11[5] are the rent arrears grounds.

Protection of moratorium

Breathing space regulations[6] specify that a notice under grounds 8, 10 and 11 must not be given during the moratorium period in respect of a moratorium debt. The court has no power to dispense with notice if the claim proceeds under ground 8.[7]

The landlord can give a notice on any other ground.

A possession claim on grounds 8, 10 and 11 must not be issued during the moratorium in respect of a moratorium debt.

Assured shorthold tenancy notices

Assured shorthold tenants are protected from a notice on rent arrears grounds in the same way as assured tenants.

Breathing space regulations[8] prevent a landlord from taking any step to enforce a moratorium debt. This means a landlord cannot make a demand for rent arrears included in the moratorium or issue a claim for those arrears during the moratorium.

Section 21 notices

The landlord can choose to use the section 21 process instead of relying on grounds. A section 21 notice can be given during the moratorium even where there are rent arrears included in a moratorium.

Rent Act tenancy

Regulated tenants are protected from a notice for reason of rent arrears during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

There is a requirement to give notice of intention to commence proceedings if they start before 31 May 2021.[9]

If a notice of intention is given it must state a reason.

Protection of moratorium

Breathing space regulations[10] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If the notice of intention states rent arrears as the reason, the notice must not be given during the moratorium in respect of a moratorium debt.

The moratorium protection extends to possession proceedings and warrants in respect of a moratorium debt.

Local authority introductory tenancy notices

Introductory tenants are protected from a notice for reason of rent arrears during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

To start the possession process, the landlord gives notice under s.128 Housing Act 1996. The notice must state a reason for ending the introductory tenancy.

Protection of moratorium

Breathing space regulations[11] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If the notice of intention states rent arrears as the reason, the notice must not be given during the moratorium in respect of a moratorium debt.

The moratorium protection extends to possession proceedings and warrants in respect of a moratorium debt.

Local authority demoted tenancy notices

Demoted tenants are protected from a notice for reason of rent arrears during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

To start the possession process, the landlord gives a notice under s.143E Housing Act 1996. The notice must state a reason for ending the demoted tenancy.

Protection of moratorium

Breathing space regulations[12] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If the notice states rent arrears as the reason, the notice must not be given during the moratorium in respect of a moratorium debt.

The moratorium protection extends to possession proceedings and warrants in respect of a moratorium debt.

Local authority flexible tenancy notices

Flexible tenants are protected from a notice for reason of rent arrears during the moratorium for arrears that were included in the application.

Landlord action to end the tenancy

To start the possession process during the fixed term, the landlord can give notice:

  • on grounds available for secure tenancies

  • of forfeiture or re-entry in line with the terms of the contract

During the fixed term, tenants have the same protection from a notice on rent arrears grounds as secure tenants.

At the end of the fixed term

At the end of the fixed term the the landlord must give notice of both:[13]

  • non renewal of the tenancy

  • seeking possession of the property

The notice of non renewal must give a reason for not granting another tenancy.

Protection of moratorium

Breathing space regulations[14] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If the notice states rent arrears as the reason, the notice must not be given during the moratorium in respect of a moratorium debt. Tenants could argue that this provision applies to the non-renewal of the tenancy during the moratorium for a reason of rent arrears included in the moratorium.

Occupiers with basic protection notices

Occupiers with basic protection are protected from forfeiture during the fixed term for reason of rent arrears that were included in the application.

Landlord action to end the tenancy

During the fixed term, the landlord can give notice under a:

  • break clause, with no reason given

  • forfeiture and re-entry clause, for a breach of the tenancy

At the end of the fixed term the landlord is not required to give a notice.

Protection of moratorium

Breathing space regulations[15] prevent the landlord from taking any step to enforce a moratorium debt or starting action or legal proceedings for a moratorium debt. If a forfeiture notice states rent arrears as the breach of the tenancy, the notice must not be given during the moratorium in respect of a moratorium debt.

The moratorium protection extends to possession proceedings and warrants in respect of a moratorium debt.

Lodgers and other excluded occupiers notices

Lodgers are entitled to reasonable notice. No reason or grounds are required.

The landlord must not make a demand for rent arrears included in the moratorium or issue a claim for those arrears during the moratorium.[16] If the reasonable notice contains a demand for rent, it must not be given during the moratorium in for arrears included in the application. This protection is likely to be difficult to enforce in practice.

Last updated: 11 May 2021

Footnotes

  • [1]

    The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [2]

    reg.9(2) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [3]

    sch. 2 Housing Act 1985

  • [4]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [5]

    sch.2 Housing Act 1988

  • [6]

    reg.7(7)(j) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [7]

    s.8(5) Housing Act 1988

  • [8]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [9]

    s.3(4A) Rent Act 1977 as inserted by para.1 sch.29 Coronavirus Act 2020

  • [10]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [11]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [12]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [13]

    s.107D(3) Housing Act 1985, as inserted by s.154 Localism Act 2011

  • [14]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [15]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311

  • [16]

    reg.7(7)(a) and reg.7(7)(f) The Debt Respite Scheme Regulations (breathing space moratorium and mental health moratorium) (England and Wales) Regulations 2020 SI 2020/1311