Weekly property litigation update - 12 March 2021


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In this week's bulletin we cover the latest restrictions on commercial forfeiture and residential evictions, new RICS guidance on EWS1 forms and the review of the Housing Health and Safety rating system. All this along with the usual insights from around the firm and some good news stories.

Restrictions on commercial forfeiture extended

The government has announced a further extension up to 30 June 2021 of the restrictions on commercial forfeiture and the use of Commercial Rent Arrears Recovery. The revised restrictions are:

  • Forfeiture: Ban on forfeiture of commercial premises for non-payment of rent extended to 30 June 2021.
  • Commercial Rent Arrears Recovery (CRAR): The outstanding rent required to pursue CRAR is being extended to 457 days' rent outstanding if CRAR is exercised between 25 March and 23 June 2021 and 554 days between 24 June and 30 June 2021.
    The Government has also announced that it will be launching a call for evidence on commercial rents to help monitor the progress of negotiations between tenants and landlords and to consult on proposals for further steps the government could take after 30 June.


Protection against residential evictions extended


The government has announced further protections against eviction for residential tenants. The key provisions are:

  • The requirement for at least six months' notice of possession proceedings to be given to tenants has been extended to at least 31 May 2021
  • The ban on bailiff-enforced evictions has been extended to at least 31 May 2021.

The latest extension is likely to mean that it will not be possible to evict tenants except in the following circumstances:

  1. Trespassers who are persons unknown;
  2. Anti-social behaviour, nuisance, domestic violence or false statements inducing the tenancy;
  3. Death of an assured tenant where the person attending has taken reasonable steps to satisfy themselves that the property is unoccupied;
  4. Mandatory grounds for possession; and
  5. Rent arrears where the amount unpaid is equivalent to six months rent.

For claims issued before the 3 August 2020 the deadline to serve a reactivation notice has been extended to 30 April 2021.


RICS issues new guidance on EWS1 forms

The Royal Institute of Chartered Surveyors has issued a new guidance note intended to significantly reduce the number of EWS1 inspections required on residential blocks of flats containing six storeys or less.

The EWS1 form was introduced by RICS to standardise the process for valuing tall residential buildings. However, a combination of revised Government guidance and an increased number of requests for EWS1 forms by lenders caused a significant slowing of the flat market as leaseholders were unable to sell or borrow without an EWS1 form, which was often not available either due to supply issues or substantive cladding problems.

The new "Valuation of properties in multi-storey, multi-occupancy residential buildings with cladding" guidance note will take effect from 5 April 2021. It aims to provide a framework for a more consistent approach as to when an EWS1 form is required. Key aspects of the revised guidance are:

  • Buildings of four storeys or less – EWS1 only required where there are Aluminium Composite Material (ACM), Metal Composite Material (MCM) or High Pressure Laminate (HPL) panels on the building;
  • Buildings of five or six storeys – EWS1 required where approximately one quarter of the building is covered in cladding, or ACM, MCM or HPL panels are on the building, or there are combustible (i.e timber) balconies;
  • Buildings over six storeys – EWS1 required where there is cladding on the building or combustible balconies.

Greater clarity as to when EWS1 forms are required is certainly good news for leaseholders and building owners alike. However, the guidance note is not binding so it remains to be seen what position lenders will take.


Review of the Housing Health and Safety Rating System

The Ministry for Housing, Communities and Local Government has appointed RH Environmental Limited to carry out a two year review of the Housing Health and Safety Rating System (HHSRS) in order to update and simplify it.

The Housing Health and Safety Rating System (HHSRS) was developed in the 1990s and has been in place for about 15 years. It is used by local authorities to assess the risk to health of safety arising from specified 'hazards' within a residential property. If hazards are identified then the local authority can exercise enforcement powers under Part 1 of the Housing Act 2004. The HHSRS also now has relevance when considering claims under the Homes (Fitness for Human Habitation Act) 2018 since the 29 hazards set out in the Housing Health and Safety (England) Regulations 2005 are considered when assessing whether a dwelling is fit for human habitation.

A consultation took place in 2019 to consider options and the aim is to improve, clarify and modernise the HHSRS. RH Environmental Ltd is now carrying out a review, and as part of that review they are canvassing the views of those who may be impacted by proposed changes, including landlords, surveyors and property professionals.

There are four surveys running from 3 to 31 March 2021 and for anyone wanting to contribute the links can be found at on this site.


Insights from around the firm

 

Good news stories

  •  #choosetochallenge: on 8 March 2021 the world celebrated International Women's Day. The day is about celebrating the social, economic, cultural and political achievements of women. Here at Trowers we had an engaging talk from some of our inspirational female leaders in the firm, who gave an insight into their experience as women in law.
  • Scientists in Manchester have successfully recreated the habitat of Harlequin tadpoles following years of meticulous study. Harlequin Toads are mainly found in the rainforest in South and Central America, making replicating the environment that much more difficult. Thankfully, this will mean that the species should be able to survive should something happen to their original habitat. 
  • After months of home learning children in England went back to school on 8 March 2021, as part of the first step for easing lockdown restrictions in England. 
  • Bristol artist Zoe Powers has created and shared positive messages through her artwork with people who are struggling during lockdown. The artwork includes the slogan "we shall dance again" and has been included on billboards across Bristol. 
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