Assured Tenancies and Possession S.21 Notice update following COVID19 Provisions

How much notice must you give a tenant when using S.21 to regain possession ? If you have given a notice to the tenant between 26th March 2020 and 23rd July 2020 the landlord must give the tenant 3 Months notice. If notice has been given between 24th July and 28th September 2020 the tenant must be given 6 months. From the 26th September 2020 assured tenants must be given 6 months notice.

Where a tenant remains in occupation of a house at the end of a fixed term he or she will usually do so as a statutory periodic tenant pursuant to S.5 (2) of the Housing Act 1988.

The landlord will usually be able to regain possession from such a tenant by a notice under section 21 of the 1988 Act. The landlord must have complied with Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 if the property is located in England or the Housing (Wales) Act 2014 if the property is located in Wales.

If their is non compliance with the relevant aforementioned act the landlord might not be able to serve a valid section 21 notice on the tenantS.21 Notices given before 25th March 2020 must give not less than 2 months notice that the landlord requires possession. Paragraph 7 of Schedule 29 to the Coronavirus Act 2020 extended this period to three months for notices given after 25 March 2020. The changes made by the Regulations are twofold:

Pursuant to Section 3(7)(a) of the Regulations, the notice period for s.21 notices given on or after 29 August 2020 is now six months.

Further, Section 3(7)(b) restores the four-month window in which landlords can bring possession proceedings following the notice period. Proceedings may be issued up to ten months from the date of service of the notice, rather than the six months previously in place.

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Clodes Solicitors
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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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