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Covid-19 and Possession Proceedings – Update on the Latest Developments

If you are a landlord you have probably been keeping up with the latest coronavirus updates affecting a landlord’s rights to repossess their property, and/or other remedies available for a tenant’s breach of lease. However, the rules currently governing possession proceedings can be confusing and are constantly being subjected to amendments, and this article will outline the most recent updates that every landlord should know about.


Lifting the Stay?

On Monday 21 September, the stay imposed on all possession proceedings finally came to an end since it first came into force on 27 March this year under the Coronavirus Act 2020.

Does this mean that landlords can simply pick up their possession case from where it was left pre-March and continue as normal? Sadly, the answer is not as straightforward as we would like it to be, and whilst landlords are now able to proceed with their claims, there are now many additional considerations to take into account affecting (a) the outcome of claims (b) the time-period in which it will take for any order to be made and (c) the enforcement of any possession order.

A new Practice Direction which recently came into force on 20 September 2020[1] imposes new obligations on parties wishing to commence or progress a possession claim.

Reactivation of Existing Claims – brought before 3 August 2020

Under the new Practice Direction, claims will not be listed, heard or referred to a judge until a party serves a “reactivation notice” stating that they wish the case to be listed. The reactivation notice must:

  • Confirm that the party serving the notice wish for the claim to be listed, heard or referred to a judge
  • Detail any knowledge the serving party has about the effect of Covid-19 on the defendant tenant and their dependants
  • If the claim was brought due to rent arrears, the claimant landlord must provide an updated rent account for the previous 2 years along with the reactivation notice
  • Where case management directions were made before 20 September 2020, the party serving a reactivation notice must propose new dates for directions and proposed hearing date, or state that no new directions are required and an existing hearing date can be met

Guidance from the Master of the Rolls also places emphasis on the parties’ obligation to attempt to settle without the need for further court involvement.

Starting New Claims – brought after 3 August 2020

For new possession claims and stayed possession claims brought after 3 August 2020, the claimant landlord using the accelerated procedure must file with the claim form, a notice setting out the knowledge that have as to the effect of Covid-19 on the defendant and their dependants.

Extended notice periods for notices prior to commencing possession claims

A landlord wishing to pursue court proceedings to repossess their property from 21 September 2020, must ensure that a valid notice under S.21 or S.8 of the Housing Act 1988 has been served and the appropriate notice period given to tenants:

  • Notices served between 26 March 2020 and 28 August 2020 – minimum notice period of 3 months
  • Notices served between 29 August 2020 and 31 March 2021 – minimum notice period of 6 months

There are some exceptions to the above, however it is imperative to ‘get it right’ at this stage, as a defective S.21 or S.8 notice can impede the whole foundation of a possession claim resulting in instant dismissal of such claim issued following service of an invalid notice.


Covid-19 Case Marking

Under a new facility for Covid-19 “Case Marking”, a party is now able to request that the court file be marked to highlight any case that is, or is claimed to be a direct consequence of Covid-19. Case Marking is available to both claimant and defendant and the request can be made at any stage, but the party making the request will be required to provide specified information.

The idea behind the court’s Case Marking facility is to assist the court in identifying settlement suitability, listing (whether to take place earlier or later) and to assist in the monitoring of possession claims. The request will usually result in the Marking unless there is an objection by the other party.


Prioritisation of Cases

The Overall Arrangements guideline provides a non-exhaustive list of cases which will be listed with priority, which include (amongst others) cases with allegations of anti-social behavior, extreme alleged rent arrears accrued, alleged squatters/illegal occupies, allegations of domestic violence and other circumstances which may warrant priority.

Subject to the above guidance, priority will also be given to claims issued before the stay commence in March 2020.


Eviction where an Order for Possession is made

After going through the lengthy court process and an order for possession is finally made, there are some further considerations to be taken into account. The Ministry of Justice has issued guidance to ensure that no enforcement of possession orders will proceed where:

  • local lockdown measures are in place; and
  • other than in the most serious cases, over the Christmas period

Realistically, at present it looks as if the earliest a landlord will be able to physically evict a tenant from a property will be after Christmas (subject to exceptional circumstances and priority cases). However, landlords should not let this put them off from commencing the possession process, and here at Glaisyers we’re able to assist you every step of the way to ensure a seamless process.

Glaisyers will also take into account your needs – for example if you are a landlord looking to evict a tenant due to non-payment of rent arrears, whose concern is primarily to collect rent, an alternative court process is available to pursue county court proceedings for a debt claim as opposed to possession proceedings. Whatever your primary concern is it’s important to discuss the options available at the outset of any claim to give you the best chance of getting the results you want.

[1] Civil Procedure Rule Practice Direction 55C (PD 55C) is the key provision of the procedural rules currently governing the intricate technicalities surrounding possession claims. PD 55C was originally due to come into force on 23 August 2020, but it’s enforcement was delayed to 20 September 2020 in line with the stay under CPR 55.29 expiring, and is due to continue to be in force until 28 March 2021.

Additional guidance published on 17 September 2020 by the Master of the Rolls provides guidance as to the “Overall Arrangements” for possession proceedings, supplementing PD 55C. This published guidance addresses the challenges faced by the legal system, in tackling, an accrued demand from the stay, the possible increase in demand caused by economic consequence of the pandemic and the reduced physical court capacity due to social distancing.


David Jones

Author David Jones

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