Some of our Southampton student landlords are reporting an increase in their student tenants reporting positive Covid cases, and therefore the whole group of tenants in that HMO have to isolate for 10 days.
This is not backed up the official Government stats, where they are reporting 32 cases per population of 100,000, however, the official Government App – Zoe – is reporting 666 per 100,000, and is showing Southampton as being substantially higher than the surrounding area.
But does this matter? Normally no, as long as none of the tenants don’t become ill, and continue to isolate. But this is at the end of the annual tenancy, and falls at the time landlords are trying to get all the previous tenants checked out, to enable a deep clean before the new tenants come in.
The landlords we have talked to are of the opinion that they still have time to be able to complete the turn round, provided one of the isolating tenants doesn’t submit a new positive case. Then the 10 day isolation clock would have to be reset, making it difficult to carry out the turnaround in time.
What can landlords do? The first thing is to establish that one of the tenants actually has a positive result. If they have taken an official Government test they will have been texted the result. As a student landlord, you should ask to see this text, thus confirming all the tenants do have to isolate from the date of the positives test.
The problem would come if they have taken one of the self-administered lateral flow tests that can be posted out, or if the students have been in contact with someone not in that HMO social bubble.
Both of those would be difficult to prove, and you would have to take their word.
And what if they are unable to leave in time for the new tenants to be correctly checked in? Students take this risk every year; if one of their outgoing students digs their heels in, and refuses to leave, the landlords will have a problem. If the landlord has offered to the new tenants ‘Subject to Contract’, and the new contract states the new tenancy is subject to the property being fully vacated, legally they are covered.
The question is, where do they stand morally? A decent Landlord will want to go beyond their pure legal obligations, and will not want incoming students left with nowhere to stay (assuming their course even goes ahead!).
If the outgoing tenant is just being difficult and refuses to leave, the landlord has to serve notice, and wait for the courts. If the tenant(s) is/are genuinely isolating, they would face a £10,000 fine if they leave their property early – clearly the landlord cannot force them out.
According to paragraph 2(3)(b)(viii) of the legislation (https://www.legislation.gov.uk/uksi/2020/1045/made) – it is impractical for the self-isolator to stay in our accommodation because everyone agrees that the tenancy has ended and the property needs to be checked and prepared for the incoming tenants. In that case the self-isolator(s) is legally allowed leave the rented property and go to stay with parents, friends, b&b etc to finish their self isolating.
The counter argument would be that the tenancy does not actually end until either the tenant voluntarily leaves or the landlord obtains a court order (even if s21 served) – however having something convincing to say will probably cause the vast majority to leave on time and not argue (too much) hopefully.
The biggest problem we fear is tenants who are leaving to go to another rented property in the city but have an inconvenient gap of a few days between tenancies (which is very common) using a false excuse of self isolating to overstay to bridge the gap.
A property barrister has advised:-
The likely legal position if a student landlord, or an ordinary landlord, is unable to offer the subject property on the agreed date because the previous tenant has failed to give vacant position is that the contract is frustrated. Frustration is a contract law doctrine that acts as a device to set aside a contract where an unforeseen event beyond the control of the parties makes it impossible to fulfill their contractual obligations. Each case is fact-specific, and the barrister has kindly offered to consider and discuss any particular case.
The best approach to this issue is a pragmatic approach. In the event, the outgoing tenant is unable to vacate the property a charge should be made for “use and occupation of the premises,” not rent. Rent is not to be demanded or charged as the tenancy has ended; any demand for rent would deem the tenancy as continuing to subsist. This revenue, which in most cases would be equivalent in quantum to the rent, will go some way to meeting alternative temporary accommodation charges for the incoming tenant if the tenant cannot remain at home. The provision of alternative accommodation should enable the contract to continue upon the grant of vacant possession of the premises.
He was also of the opinion that most parents of incoming tenants when appraised that had an outbreak of Covid had occurred would in all likelihood prefer their sibling to remain at home until it was safe to occupy the premises; understand that the delay is simply beyond the control of the landlord, and adopt a sympathetic approach.
There is no proper answer to this. A decent student landlord would make every effort to house in-coming student tenants, even if they have to house them at extra cost for the 10 days of isolation. This would be expensive, but is the risk all landlords take, especially student landlords.
We would be interested to hear from you if you are suffering this problem, especially if you have found a (legal) remedy – email us at email@example.com.