Update on possession proceedings

22 September, 2020

 

After a long six months, the stay on possession proceedings has finally been lifted. However, this does not mean an immediate return to normality. Instead, there are yet more new processes to get to grips with and what is likely to be a long road ahead with hurdles in a landlord’s quest to obtain a possession order.

The courts have released “The Overall Arrangements” for how possession proceedings will be run over the next 6 months. This includes how cases will be restarted, which cases will be prioritised and how courts will deal with possession cases moving forward. The overriding message being that landlords and tenants should work together to achieve a resolution before reaching a possession hearing and, where possible, without resorting to involving the Court at all.

Process

Review Date

Once proceedings have been issued or current proceedings have been reactivated (please see previous note on Reactivation Notices here) instead of the Court simply listing a hearing upon issue of a claim or on receipt of a valid Reactivation Notice, a “Review Date” will be listed with a 5 minute time slot. The Review Date allows the tenant to obtain free legal advice and for the landlord and tenant to potentially reach an agreement with the help of a duty advisor. There is also an opportunity for the parties to agree to a mediation under a pilot scheme.

Fourteen days before the Review Date, the landlord must provide the Court and the tenant with a bundle of all the relevant documents (including the enhanced information regarding the effect of Covid-19 on the tenant) and confirm its availability for the Review Date so it is possible for the tenant or the duty advisor to contact the landlord in order to discuss the case by telephone.

A short review of the documents will be carried out by a judge without the attendance of the parties. If the parties have reached an agreement, the judge will make the agreed order. If not then the case will be listed for a “Substantive Hearing”, assuming the landlord’s documents are all in order. If the documents are not in order then the judge can be expected to dismiss the claim or give directions.

Substantive Hearing

The Substantive Hearing looks very similar to your usual possession hearing, although, the eight week period in which hearings should normally be listed from the date of issue, no longer applies. The date of the Substantive Hearing however, should be (at least) 28 days after the Review Date. There will also no longer be block lists of hearings and hearings will be held in person unless the parties agree otherwise.

At the hearing the judge will either make an order or adjourn the claim. It can be expected that the question of adjournment will be considered, without the need for an application to adjourn, in any case where (a) there is no sign that advice has yet been made available to the defendant and (b) the consequences of the order may be serious in the context of the pandemic. It is yet to be seen how freely judges will use this discretion but it could be a serious issue for landlords.

Prioritising cases

The courts have provided a list of the type of cases which will be prioritised:

  • Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985.
  • Cases with extreme alleged rent arrears accrued i.e. equal to at least 12 months’ rent or 9 months’ rent where that amounts to more than 25% of a private landlord’s annual income from any source.
  • Cases involving alleged squatters, illegal occupiers or persons unknown.
  • Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
  • Cases with allegations of fraud or deception.
  • Cases with allegations of unlawful subletting.
  • Cases with allegations of abandonment of the property, non-occupation or death of defendant.
  • Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

 

It is unclear how this will work i.e. will cases which fall outside of the above requirements constantly be pushed back until April 2021 or will a certain percentage of the courts’ time be set aside for these cases. Either way it is likely that possession proceedings based on rent arrears that fall below the 12 month mark and proceedings merely brought on the basis of a section 21 notice, will face serious delays in being heard.

Subject to the above list, claims issued before the stay commenced in March 2020 will be given priority over new cases, which does not bode well for landlords issuing proceedings now that do not fall into one of the above priority categories.

Covid-19 Case Marking

Covid-19 Case Marking allows the Court to better deal with cases where either the landlord or the tenant have genuinely been affected by the pandemic. It will highlight settlement suitability and it is open to the landlord and the tenant to make a request that the matter be Covid-19 Marked, although, evidence will need to be provided of the difficulty suffered. It will also assist the Court with prioritising listings and with case management.

Where the Court is able to exercise discretion, it will also assist judges in doing so. Either party can request that the matter be Covid-19 Marked, but the other party can object. If this occurs then the Court will make its own decision based on the papers as to whether it is appropriate for it to be Covid-19 Marked.

Accelerated claims

Unfortunately, accelerated possession proceedings also require a Reactivation Notice, even though they are brought on a no fault basis. Each court centre will refer accelerated claims to a judge at “manageable frequency”, whatever that may mean. Judges will use the time freed up where Substantive Hearing slots are vacated to deal with Accelerated Possession Claims referred to them for consideration.

Taking this into account alongside the prioritisation of claims set out above, it is likely that accelerated claims will make very slow progress through the courts between now and the end of March.

Overall, it is clear that there will be significant delays, especially when it comes to proceedings falling outside of the priority list. When it comes to new proceedings, landlords should be warned that it is unlikely they will be heard before April next year. Landlords should also keep in mind that the cost of dealing with the possession proceedings is going to be significantly more when instructing solicitors, as there are many more hoops to jump through and much more time than usual will need to be spent dealing with the new steps as set out above.

 

First update on possession proceedings from 02/09/20

On 21 August 2020 another blow was dealt to landlords of residential and commercial premises.  The stay on possession proceedings was originally brought in by Practice Direction 55.29 and was due to end on Monday 23 August 2020.  However, the Housing Secretary announced on Friday 21 August 2020 that the stay would be extended to 20 September 2020 in order to protect tenants from eviction.

Landlords who have ongoing possession proceedings in the County Court are already likely facing extreme delays once the stay is lifted and, the longer the stay goes on, the bigger the backlog will be and who knows how long it will take for new possession claims to be issued and heard.  Practice Direction 55C has temporarily removed the eight week time period in which a Court should list a possession hearing from the date it was issued, and landlords now have to file and serve a reactivation notice in order for their claim to move forward, meaning they must spend more time and money on a process which is already drawn out and expensive.  In spite of all of this, landlords are now facing a further four week delay.

What’s more, on 29 August 2020 the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 were introduced which extends the notice periods for seeking possession of most residential tenancies to six months, except in certain serious cases.

Before Covid-19 struck, landlords were able to serve a section 21 notice requiring possession of their property giving not less than two months’ notice.  Periods for serving section 8 notices are more varied but a landlord was only required to give two weeks’ notice to a tenant that it was going to bring possession proceedings based on non-payment of rent arrears.  The Coronavirus Act 2020 extended the notice periods for both notices to three months in March and this extension of the notice period was supposed to come to an end on 30 September 2020.  However, the notice period will now be six months and this will be in place until 31 March 2021.

This is subject to certain exceptions, and shorter notice periods are provided in instances where the grounds for eviction relate to the tenant’s immigration status, anti-social behaviour, domestic violence or fraud.  Additionally, the notice period for a section 8 notice will only require a four week notice period, where at lease six months’ rent is unpaid at the time the notice is served (compared with a six month notice period where less than six months’ rent is unpaid).

The Ministry of Housing, Communities and Local Government has updated its Technical guidance on eviction notices.  This now contains helpful tables showing the modified notice periods that will apply from 29 August 2020 to 31 March 2021, depending on which grounds of eviction the landlord relies on.

This news will be disappointing for landlords and only brings more uncertainty for the future.