How will the Court treat my possession claim during the pandemic?
In March 2020, a stay on possession claims was introduced protecting tenants temporarily from possession proceedings. The stay was lifted on the 20 September 2020 allowing landlords to commence possession claims at the Court again. However, several changes have been introduced to the way in which possession claims will be dealt with by the Court. This blog aims to provide an overview of the changes and how the Court will deal with possession claims from the 21st September 2020.
Possession Claims sent to the Court prior to the 20 September 2020
All possession claims sent to the Court prior to the 20 September 2020 except cases against persons unknown, interim possession order applications and where applications for agreed case management directions were made have been stayed by the Court. To lift the stay from your possession claim, you will be required to file a reactivation notice. In the reactivation notice, you will need to ask the Court to either list, re-list, hear or refer the case.
The Government has produced a template reactivation notice which may be used. If you do not file a reactivation notice, then your case will remain stayed until you have filed a reactivation notice and no action will be taken by the Court. All reactivation notices are required to be filed by 29 January 2021. If a reactivation notice is filed after this date, then you will have to make an application to the Court and pay a fee for the stay to be lifted from your possession matter.
Possession Claims sent to the court after the 3rd August 2020
For any possession claims sent to the court for issuing after the 3rd August 2020 separate considerations will apply. Practice Direction 55C paragraph 6.1 requires you to file a notice setting out what knowledge you have as to the effect of the Coronavirus pandemic on the Defendant and their dependants. This notice should be filed when sending your possession claim to the Court. The effect of the notice is to inform the Court whether the circumstances that the Defendant is in are due to Covid-19 and if the case should be marked accordingly. There is no requirement under the procedure rules to actively obtain this information, but the Court may not be impressed if you have not tried to obtain this information.
You will also be required to serve a copy of the notice on the Defendant not less than 14 days prior to the hearing and bring two copies of the notice to the possession hearing. There is no prescribed form for the notice and a simple notice to the Court may suffice.
The Courts have removed the 8-week period in which they were previously required to list a possession claim. Instead, priority listings have been introduced with no time frame of when these priority cases or any other non-priority cases will be listed. The Court’s will be focused on prioritising claims issued before the stay came into force in the first instance.
The Government previously stated that the most “egregious cases” will be prioritised at the Court. Accordingly, a guide on the Overall arrangements for Possession Proceedings in England & Wales was produced. The guide provides a list of cases that will generally be prioritised by the Courts. Any category of cases not part of the list may not be prioritised by the Court and it seems will be considered when the Court has capacity to deal with it.
The cases that will be prioritised include:
“(a) 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;
(b) cases with extreme alleged rent arrears accrued, that is, arrears equal to at least
(i) 12 months’ rent or
(ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source.
(c) cases involving alleged squatters, illegal occupiers or persons unknown;
(d) cases involving an allegation of domestic violence where the claimant is a Social Landlord and 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);
(e) cases with allegations of fraud or deception;
(f) cases with allegations of unlawful subletting; and
(g) cases with allegations of abandonment of the property, non-occupation or death of defendant;
(h) cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.”
The above list of cases will be used as a guide by the Courts but the Courts may also take into account other factors such as the impact on the claimant and defendant in that case as well as other cases may be taken into account when considering whether or not to list a case as a priority.
In possession claims where the claim is being brought as a direct consequence of Covid-19, the claim may be marked as a Covid-19 case. Parties will be required to consider whether the case should be marked as a Covid-19 case. If they consider that the case is suitable for Covid-19 marking, then they can make a request to the Court at any time for such marking.
The marking will be used to highlight suitability of settlement, any special considerations for the defendant, any hardship to the claimant because of the pandemic and assisting the court with listing and monitoring of such cases.
The Court will require specific information from the parties if a request is made for Covid-19 marking. The required information that needs to be provided can be found on the government website under the documents “ Important information for claimants and Important information for defendants” .
Once the possession claim has been issued at the Court. The Court will list the matter for an initial review appointment prior to proceeding to the substantive hearing. Notification of the review appointment will be sent out 21 days in advance of the appointment. The purpose of the review appointment is to enable the defendant to receive duty scheme advice and for the parties to consider settlement. This is not a substantive hearing as this will be listed thereafter if settlement cannot be reached.
Parties are required to be available for the review appointment and a bundle will need to be produced by the Claimant in both electronic and hard copy format A copy of the electronic bundle will need to be filed with the Court and a hard copy to the defendant.
If the parties are unable to agree a settlement, then the court will list the matter for a substantive hearing.
The earliest a substantive hearing may be listed is 28 days after the review appointment. At the substantive hearing the Court will consider whether to make a possession order, adjourn the matter or make further case management directions.
In cases involving mandatory grounds such as section 21 and ground 8, the courts will be required to make possession orders provided the claim is valid and the grounds are satisfied.
Several changes have been introduced to encourage parties not to bring possession claims and encourage settlement of the claims out of court. Court proceedings are likely to take a very long time if your claim is not a priority case and you should consider obtaining advice on whether it would be possible to resolve your case without court action. This will not always be possible and therefore it is important that the court procedure is followed carefully to avoid further unnecessary delays.
Anthony Gold Solicitor’s Housing disputes team would be happy to assist and advice you if you are seeking assistance with a possession claim.
*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.*