What does the national lockdown mean for possession claims?

29 Jan 2021 | William Ford

The coronavirus pandemic has caused disruption to all elements of life, and possession proceedings are no exception. The number of landlords seeking to recover possession of their property is on the rise, as are the number of renters who have accrued rent arrears. It is now estimated that over 800,000 renters in the private and public sector are behind on their rent[1]. With limited relief being provided by the Government, this figure seems set to rise.

Any existing housing possession claims, whether for rent arrears or any other reason, will need to follow the new rules, and the procedure to bring a possession claim has changed, with no plans for it to be revised before 28 March 2021. So what has changed and what does this mean for Landlords and tenants?

The standard possession procedure, at its most basic requires a landlord to: serve notice on their tenant; upon expiration of the notice, make an application for possession to the court; await notification of a hearing date (unless the claim is heard on the papers); and seek to obtain an order for possession from the court at the hearing. If successful, the landlord must then obtain a warrant for County Court Bailiffs or a Writ for High Court Enforcers to enforce the order, and evict the tenant.

However, as a result of the pandemic there was a national “moratorium”, which stayed all possession proceedings started on or after 27 March 2020 and this lasted until 20 September 2020. The effect of this was that the following could not take place during the period:

  • Applications for a possession order or a variation to an existing order;
  • Applications to enforce a possession order by an eviction warrant or High Court writ;
  • Appeals of possession orders[2].

We are now entering what has been termed “the interim period”. This means that no stayed claim can be listed; relisted, heard; or referred to a judge until one of the parties files and serves a written “reactivation notice” confirming that they wish the case to be listed; relisted; heard or referred to a judge. Only claims brought before 3 August 2020, where no order was made before 27 March 2020 can currently be reactivated.

Any reactivation notice must confirm that the party filing and serving it wishes the case to be listed; relisted; heard or referred and set out the knowledge that party has as to the effect of the pandemic on the Defendant and anyone who resides with them. Any reactivation notice for a claim brought before 3 August 2020 must be filed and served no less than 42 days before the trial date (if one has been fixed) and in any event if no reactivation notice has been filed and served by 4:00pm on 29 January 2021 the claim will be automatically stayed, requiring an application to the court to have the stay lifted.

Where the claim has yet to be listed the court will fix a hearing date after it issues the claim form, but the standard period of eight weeks between the date of issue and the hearing date will not apply. The court has a wide degree of discretion as to when the hearing will be listed.

Any claim that was started on or after 3 August 2020 will not require a reactivation notice. However, the Claimant must still bring to the hearing two copies of a notice that sets out what they knew about the effect of the pandemic on the Defendant and anyone who lives with them, and serve a copy of the notice on the Defendant at least 14 days before the hearing.

Where a claim has been reactivated the Court will list a review hearing, before a substantive hearing is listed. At the review hearing, if settlement cannot be reached and provided the claim is procedurally in order, a substantive hearing will be listed for the first open date after 28 days.

Claims for injunctions; claims against unlawful trespassers; interim possession orders against squatters, and; applications for a case management hearing have not been stayed. Stand-alone actions to recover debt (for instance for rent arrears) have not stayed, but possession proceedings relying on non-payment of rent have been.

The above procedure must be followed in order for a landlord to lawfully recover possession of their property. If this procedure is not followed, then any attempt to evict a tenant may be an unlawful eviction. The tenant would be entitled to seek compensation and reinstatement (re-entry) to the property. A leading national newspaper recently published an article estimating that unlawful evictions were up by a factor of 50%[3].

Unless the new rules and requirements are extended, they will cease to have effect from 28 March 2021 and the procedure will revert to the pre-pandemic rules.

Osbornes Housing Team can offer advice if you are served with possession proceedings or are unlawfully evicted so please contact the team for further advice on 0207 485 8811 or complete an online enquiry form here.

Sources:

Shelter Legal https://england.shelter.org.uk/legal/possession_proceedings_and_eviction/possession_process/covid-19_suspension_of_possession_proceedings_and_reactivating_proceedings#_edn2

Lime Legal

http://limelegal.co.uk/hlwemails/2021/HLW13012021.html

[1] https://www.nrla.org.uk/news/over-eight-hundred-thousand-renters-in-arrears-due-to-covid

[2] Hackney London Borough Council – v – Okoro [2020] EWCA Civ 681

[3] https://www.independent.co.uk/business/illegal-eviction-coronavirus-pandemic-housing-tenants-b487020.html

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