Possession Claims Amends Due to Pandemic 14 May 2021 | Alex McMahon

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Last year I set out in two blogs the amendments implemented by the Government in the procedure for residential possession as a result of the pandemic:

This third lockdown has, for many, been the hardest yet, myself included. We are now more than one year into this pandemic and, through an awesome national effort, the landscape has finally started to shift, with the roadmap announced by the Prime Minister on 22.02.2021 on track. The shops are now open, travel restrictions are easing, and outside hospitality has been allowed since 12.04.2021. I enjoyed a first ‘al fresco’ pint with friends over the early May bank holiday. Next week, from 17.05.2021, hospitality services will welcome customers inside again for the first time since the third national lockdown was announced on 06.01.2021. Most significantly for me, I will finally get to hug my mum and can visit my grandmother.

For landlords and tenants this has been a very challenging year. The national approach has quite rightly been focused on public health considerations, and the amendments put in place have been with a view to reducing homelessness and keeping people in their homes.

At the end of this month – 31.05.2021 – the rules for residential possession proceedings will change again. Yesterday the Government announced that from 01.06.2021 new regulations will come into effect (for England only).

The position now until 31.05.2021 

This blog will deal with fresh notices and court claims from this point onwards. My earlier blogs look at some of the changes last year. If your situation is not covered by this blog (i.e. for existing notices or court proceedings) you will need to look at the provisions in force at the relevant times to understand how they affect you.

Notice requirements

A landlord serving notice on their tenant will currently, in most cases, need to specify a minimum notice period of 6 months from the date the notice is served. This applies to s.8 notices (specifying a ground for possession) and s.21 notices (where no fault is required). There are some limited exceptions to this notice period, for instance in cases of serious rent arrears or where anti-social behaviour is alleged.

Court procedure

The Civil Procedure Rules, which includes specific rules and practice directions for possession claims, has been amended to respond to the pandemic. A new practice direction (Practice Direction 55C) has been in force since 20.09.2020 and currently will end on 30.07.2021. It sets out the steps and procedural requirements that are required to:

  • Reactivate an existing possession claim, which will have been stayed;
  • Issue a new claim.

My August blog covered the most technical elements of these changes.

The government has issued guidance for landlords and tenants, which is regularly updated:

https://www.gov.uk/government/publications/understanding-the-possession-action-process-guidance-for-landlords-and-tenants

Evictions

During the period of any national lockdown, measures have been introduced which mean that, except in certain specified circumstances, orders for possession may not be enforced in England or Wales.

This means that where a possession order has been made by the Court, currently the regulations prevent landlords from enforcing the order to evict their tenant in the vast majority of cases, subject to certain exemptions. The exemptions relate to the circumstances of the possession order having been made (e.g. on grounds of serious rent arrears, or anti-social behaviour), and the Court must be satisfied that one of the exemptions applies to allow enforcement of the order. An exemption will need to be stated on the possession order, or otherwise the landlord will need to apply separately to the Court following the possession order for a determination as to whether an exemption applies.

Other claims

The changes to the possession process do not prevent landlords from pursuing other claims, such as debt claims in respect of the non-payment of rent.

The position from 01.06.2021

Notice requirements

It was anticipated that when the current amendments came to an end later this month, the notice requirements would revert to those applicable pre-pandemic. Yesterday’s announcement confirmed that won’t be the case. Instead, there will be another period of amendments running from 01.06.2021 to 30.09.2021 in which, for the majority of notices, a period of 4 months must be given (reduced from 6 months).

As before, there are exceptions dependent on the ground relied upon (for s.8 notices). Notably, the rent arrears exception has been amended and will mean that in cases where rent arrears exceed 4 months, a landlord need only give 4 weeks’ notice. To make matters even more confusing, additional changes will apply in respect of rent arrears from 1 August 2021.

For s.21 notices, it is also worth noting that the period in which proceedings can be issued is revised from 10 months from service (currently) to 8 months from service. In practice this will mean landlords have a period of 4 months following the expiry of the notice period to issue their claim.

Court procedure

As above, PD55C will apply until 30.07.2021.

Evictions

The ‘ban’ on evictions will end on 31 May 2021. This will mean that landlords can apply to enforce possession orders previously made and new orders will be enforceable in the usual way. Tenants whose evictions were cancelled can expect to receive fresh dates from the Court confirming when the eviction will be carried out by the Court. The Government announcement confirms:

14 days’ notice is required before an eviction can take place. Therefore, no evictions are expected to take place before mid-June except in the most serious circumstances, and bailiffs have been asked not to carry out an eviction if they have been made aware that anyone living in the property has COVID-19 symptoms or is self-isolating.

What does this mean for me?

The swathe of regulations and guidance in the last 12 months has made this process confusing and complicated. There is a lot to get wrong, and therefore landlords and tenants should consider getting advice.

I have some general advice for tenants who are worried about their situation:

  • If you have received a notice from your landlord, don’t panic. It is more important than ever to check it carefully against the rules to see if the relevant requirements have been met. If you are unsure seek advice. You may have a defence to possession if the incorrect notice has been used, if the notice period is wrong, or if some other requirement has not been satisfied.
  • If you have received a s.21 notice from your landlord, extra scrutiny might be needed. There are lots of requirements for landlords before they can validly serve a s.21 notice, and mistakes can render the notice defective. Check, and seek advice if unsure.
  • If you have received Court possession papers, make sure you respond and include details of your circumstances. The Court wants to know how the pandemic has affected tenants. Seek advice if you are unsure. In most cases the Court will now list an appointment with the Court (a Review Date) before a substantive hearing. The purpose of this ‘review’ is to enable the Court to understand the background circumstances and to see if agreement can reached that does not require an order for possession. Make sure you attend any Court dates. There is also the possibility for Court mediation with your landlord, which may be a helpful tool to resolve the situation without requiring you to lose your home.
  • If you are in financial difficulty and you are worried about losing your home because of rent arrears, speak to your landlord and see if you can agree a payment plan. If you cannot afford the rent or if you are in rent arrears, check your entitlement to Universal Credit. You should also contact the local authority to see if you could apply for Discretionary Housing Payments (DHP) which if awarded could help top up any shortfall in rent payments, or help to cover some of the arrears. If you can genuinely no longer afford to live at the property, you should also consider approaching the local authority’s homeless team. They may be able to help prevent you from becoming homeless, or support you should homelessness become unavoidable.
  • If you are a tenant (rather than a lodger/ some form of licensee) your landlord cannot evict you from your home without due legal process via the Courts. This requires them to obtain a possession order and to enforce that order by way of a writ or warrant of eviction. If your landlord threatens or attempts to evict you, or indeed does evict you from your tenancy, without following due legal process, this will be unlawful. It may amount to an unlawful eviction and/or harassment. You should seek urgent legal advice if that is the case.

Legal aid is available for housing possession matters, unlawful evictions and homelessness, subject to a means and merits assessment. Osbornes has a specialist team of solicitors who will be able to advise you in your case under our legal aid housing contract. Please call 020 7485 8811 or complete an online enquiry form.

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