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I’m not telling you, I’m asking you

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19th January 2022

It has been a challenging two years for those involved with the letting and management of residential property. The moratorium on possession proceedings for much of 2020 and the subsequent court backlog, together with ever changing notice periods and last-minute amendments to forms and regulations has resulted in a frustrating and confusing picture for lay people and professionals alike.

The latest in a long line of changes came about on 1 October 2021 with the introduction of a new “Form 3” – the prescribed form that must be used when serving a notice seeking possession on a tenant under section 8 of the Housing Act 1988. Cases involving the new form will be arriving at court about now.

The new form is much more streamlined than its predecessors. Where the old form included lengthy notes of advice for tenants, the new form merely refers tenants to a section of the gov.uk website where further information about the notice and the possession process may be found. In addition, a separate document entitled “notes for Form 3” has been produced and is hyperlinked on gov.uk underneath the link for accessing the new Form 3 notice. The notes are lengthy and include various signposts for the tenant to sources of free legal advice and to their local authority for homelessness assistance.

The Department for Levelling Up, Housing and Communities (formerly MHCLG) has recently produced a document named “Technical guidance on eviction notices”. This document states “Form 3 has been amended to remove the detailed notes that appeared within the form. The notes are now contained in a separate document – the notes are for landlords and tenants and landlords are asked to provide a copy of the notes to the tenant when serving the completed form”.

The problem with this technical guidance is that “asking” landlords to provide their tenants with a copy of the accompanying notes is not the same thing as telling them to do so. As the notes no longer form part of the prescribed form, serving a notice seeking possession without the notes will not invalidate the notice. There is therefore a very real possibility that a tenant could be left without the accompanying notes and, therefore, the important signposting to support services. This problem is likely to affect more vulnerable tenants and/or those with particular difficulties accessing the internet. That does not seem like a particularly desirable outcome for landlords or tenants, as timely legal advice for the tenant will at least narrow (if not resolve) the issues between the parties before the first possession hearing.

Furthermore, though a notice served without the accompanying notes will still be a valid notice, it is  not difficult to see how a court could take a failure to follow the technical guidance into account when making other decisions. Most obviously, a court could have regard to any failure to provide the notes to the tenant when exercising its discretion as to what order to make about costs. But there are other more fundamental points – for example, if a tenant has not been able to avail himself of homelessness advice from his local authority by the time of the possession hearing, and the notes have not been provided to him, then there would be scope to argue that the usual 14-day period for delivery up of possession should be extended on the grounds of exceptional hardship. In a more extreme case, a landlord relying on a discretionary ground for possession may find that any failure to serve the notice seeking possession with the accompanying notes goes to the issue of the reasonableness of making the possession order itself – consider the case of a tenant whose arrears are persistent, but not high enough to meet the mandatory threshold. The notes specifically advise tenants to try to come to a resolution with the landlord before proceedings are issued, but a tenant without those notes may not realise that it is open to him to agree a payment plan in order to avoid a possession order being made. In those circumstances, a failure to serve the notes could be a factor that tips the balance in favour of it not being reasonable to make a possession order, or that order being suspended or postponed.

It therefore remains best practice for a landlord to serve the notice seeking possession and the notes together, and, where a landlord has done so this is a point that should be covered specifically in any witness statement in support of the possession claim.

By Katie Gray

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