Residential Tenancy Update – October 2020

Introduction

On 3rd April 2020, the Government of Jersey passed the COVID-19 (Residential Tenancy) (Temporary Amendment of Law) (Jersey) Regulations 2020 (the “Regulations”). The Regulations were made to temporarily amend certain provisions of the Residential Tenancy (Jersey) Law 2011 (the “2011 Law”).

The Regulations came into effect on 10th April 2020 and introduced a number of safeguards designed, primarily, to protect tenants during the currency of the Covid-19 crisis. They included a moratorium on landlords bringing eviction proceedings and the mandatory suspension on rent increases.

The Guidance Note

At the same time, the Housing Minister also issued a guidance note as to the manner in which landlords and tenants ought to conduct themselves during the Covid-19 crisis so as to reduce, as far as possible, tenancy disputes reaching the Court (the “Guidance”).

The Guidance encouraged landlords and tenants to disclose and Covid-19 related financial difficulties that they were facing at an early stage and attempt to address them in an open and constructive manner.

Contrary to the position which seems to have been adopted by a number of tenants during the pandemic, the Guidance made clear that neither it, nor the pandemic itself, operated to automatically release either landlords, or tenants, from their obligations under the terms of their residential tenancy agreement.

Temporary Voluntary Arrangements

The Guidance merely provided a mechanism by which the parties to a residential tenancy agreement might vary the terms of that agreement in the event that any of the parties to it were able to provide evidence of material financial hardship caused by the pandemic. This mechanism was named the “Temporary Voluntary Arrangement”.

Therefore, unless the parties have entered into a Temporary Voluntary Arrangement during the period in which the Regulations remained in force, the terms of their original residential tenancy order would have remained in full force and effect. Any breaches of those terms would give rise to a claim in the usual way, subject to the moratorium on proceedings. Equally, a claim could also be brought in relation to any breach of the terms of a temporary voluntary arrangement.

Potential Sanctions for Non-compliance With The Guidance

Importantly, the Court is entitled to take into account the extent to which, if at all, the parties have complied with the terms and spirit of the Guidance and impose sanctions, in certain circumstances, for such failures. Such sanctions would likely be in relation to costs.

The Current Position

The Regulations were repealed on 30th September 2020 and since that time, the 2011 Law has been returned to its full force and effect.

Landlords are now permitted to give effect to rental increase without fear of criminal sanction and to issue proceedings against defaulting tenants. This will of course be welcome news to many landlords who have been unable to take action in relation to defaulting tenants during the height of the Covid-19 crisis.

Before deciding whether to take any action against their tenants, landlords need to consider whether the alleged breaches are sufficiently serious to merit the commencement of eviction proceedings and whether they are precluded from issuing such proceedings by virtue of the terms of any Temporary Voluntary Arrangement which they entered during the pandemic.

Should you wish to discuss any matters arising from this article or any other matter relating to your residential tenancy, please do not hesitate to contact Advocate George Pearce.