Further Extension to Eviction Ban until February 2021

On 11 January 2021, the Government announced an extension to the “winter truce” on the enforcement of possession orders until 21 February 2021 pursuant to The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (“the Regulations”).

This means that County and High Court Enforcement Officers are limited from executing a Warrant or Writ of possession or delivering a notice of eviction to tenants in relation to residential tenancies until after 21 February 2021. As 14 days’ notice of eviction is required to be given to tenants before bailiffs can attend a property to carry out an eviction, it means that no eviction action, unless exempted under Regulation 2(2), can take place until after 8 March 2021.

Regulation 2(2) Exemptions

The exemptions prescribed under Regulation 2(2) which permits bailiffs to execute a Writ or Warrant or serve a notice of eviction on tenants are as follows:

• Claims against trespassers where the landlord does not know the identity of the persons occupying the property;
• Anti-social behaviour and nuisance;
• Domestic violence in social tenancies;
• False statement made by the tenant either knowingly or recklessly;
• Unoccupied property due to death of the tenant; or
• Substantial rent arrears totalling at least 6 months’ rent.

‘Substantial rent arrears’

For the purposes of enforcing possession orders in relation to rent arrears in assured tenancies, the Government previously required landlords to demonstrate that there were ‘substantial rent arrears’ outstanding. This was defined as being at least 9 months’ unpaid rent which accrued before 23 March 2020 and was outstanding on the date the possession order was granted. Any rent arrears which accumulated after 23 March 2020 were excluded.

The Government has recently eased this requirement and landlords are now only required to demonstrate at least 6 months’ unpaid rent before proceeding with enforcement action. The previous requirement to prove the rent arrears accumulated before 23 March 2020 and were outstanding at the date of the possession order has now been removed.

However, the possession order must relate to claims brought on Section 8 grounds of rent arrears. A landlord will not be able satisfy the exemption if they brought a claim under Section 21 and claimed rent arrears at the same time.

Where a possession order was made in relation to rent arrears between 17 November 2020 and 11 January 2021, a Court will mark the order as being suitable for eviction if there is more than 9 months’ rent outstanding which accrued before 23 March 2020 and were outstanding at the date of the possession order.

In relation to recent possession orders made from 11 January 2021 onward, the Court will mark the order as being suitable for eviction where there is 6 months’ rent outstanding regardless of when it accrued.

Applications to the Court

The current position is that landlords will need to ensure that the possession order explicitly states that the exemptions have been made out to commence enforcement action. However, if a landlord obtained a possession order before 17 November 2020, they need to make an N244 Application to the Court to proceed with the eviction as the possession order would not state the Court’s satisfaction to an exemption being made out. A hearing date will be listed, and the Court will declare whether it is satisfied that an exemption has been met. Only after this, a landlord can proceed with making a request for a Writ of Warrant for possession.

However, landlords who obtained possession orders after 17 November 2020 in relation to one or more of the exempted grounds are not required to make any applications to the Court as possession orders will be marked as being suitable for proceeding with enforcement. A landlord can therefore proceed with enforcement action providing the Court is satisfied that an exemption has been fulfilled and recorded on the possession order accordingly.

What does this mean?

The ban makes it unlawful for Enforcement Officers to serve a notice of eviction on tenants or execute a Writ or Warrant of possession until after 21 February 2021 unless one or more of the exemptions stipulated in Regulation 2 apply.

Despite this, landlords are not restricted from sending requests for Writs or Warrants to the Court while the ban is in force and even where the possession order falls outside the exemptions listed in Regulation 2. In the latter case, a landlord must wait until after 21 February 2021 to commence enforcement action and a tenant can remain in the property in the meantime.

If you require advice or assistance in enforcing a possession order, then please contact us on 020 7940 4000.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*