Possession Claims Update – Further extension to eviction ban until the end of March 2021

The Government has announced a further extension to the ban on evictions until 31 March 2021. The Government’s press release confirming the extension can be accessed here.  The ban was due to be lifted from 22 February 2021, however, due to the latest extension, enforcement officers cannot serve notices of eviction or evict tenants for a further six weeks.

The Government has also confirmed that the extension will be kept under review and they are yet to publish further guidance on the recent extension. As no further guidance has been issued, we will have to wait and see whether any further changes will be made to the existing Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (“the Regulations”). The Government has suggested that the existing exemptions prescribed by the Regulations will remain in place for the most serious cases, including illegal occupation, anti-social behaviour and rent arrears amounting to at least 6 months’ rent. I previously discussed the exemptions in my earlier blog which can be found here.

Eviction Ban considered in the High Court

In the recent High Court case of The Master, Wardens and Assistants of The Guild Fraternity of the Brotherhood of the Most Glorious and Undivided Trinity and St Clement in The Parish of Deptford Strond -v- Dequincy Prescott and Clodagh Byrne (2021) EWHC 283 (Ch), Master Dagnall confirmed that the exemptions prescribed the Regulations, in particular regarding rent arrears, did not apply to a section 21 possession claim even where there was a money judgement made against the tenant for rent arrears.

In this case, the Claimant brought a section 21 claim for possession of the property, and on 10 January 2020, the Defendants were ordered to give possession of the property by 24 January 2020 and pay the rent arrears of £27,633.36 which at the time totalled 8 months’ rent. The Defendants had not vacated the Property or paid the rent arrears in full and the Claimant filed a Request for a Warrant for Possession. The Warrant for Possession was issued by the County Court on 14 February 2020 but was never executed due to the stay on possession proceedings imposed during the first national lockdown. The Claimant subsequently obtained an order to transfer the possession order to the High Court and a Writ for Possession was issued by the High Court on 8 January 2021.

The Claimant subsequently filed an application for permission to execute the Writ which was considered by Master Dagnall in the High Court. It was held that making an application for permission to execute the Writ was not the correct approach as the Court had to be satisfied whether an exemption pursuant to the Regulations was met in order to correctly take enforcement action. In this instance, Master Dagnall was not satisfied that the rent arrears exemption applied to section 21 claims even where there was an order against the Defendants to pay the arrears. This was because the exemption only applied to cases where the possession order was made on ‘grounds which wholly or partly’ related to rent arrears pursuant to Grounds 8, 10 and 11 in Schedule 2 of the Housing Act 1988 and not as a consequence of a section 21 claim. In addition, the Regulations were put in place to restrict evictions from taking place and by making such a  declaration, it would defeat the intended purpose of the Regulations.

Conclusion

In this case, despite the tenant being in substantial rent arrears, the rent arrears exemption was not present as it was a claim brought on the basis of section 21. Had it been a section 8 claim for substantial rent arrears citing grounds 8, 10 and 11, it is likely that the Court would have been satisfied that the exemptions had been met. It is therefore clear that the Courts will take a literal approach when deciding applications for declarations and any application made in relation to possession orders for section 21 claims are unlikely to be successful even where the tenant is in substantial rent arrears. Master Dagnall’s decision appears to be in line with the Government’s guidance, ‘Understanding the possession action process: A Guide for Private Landlords in England and Wales’, from the current eviction ban, which states:

“The Order must have explicitly been made on one of the grounds listed as an exemption in Regulation 2. These include specific Section 8 grounds under Schedule 2 of the Housing Act 1988. For the eviction to be allowed to proceed, the Order cannot, for example:

• Have been made under Section 21 of the Housing Act 1988, even if the Section 21 notice was served to respond to one of the serious circumstances for which an exemption applies.”

As these rules are likely remain in place until the end of March 2021, a landlord will not be able to enforce a possession order until after 31 March 2021 unless the claim falls within one of the narrow exemptions. We will have to see if those exemptions are modified in any way when the new regulations are published before proceeding with enforcing a possession order through the execution of a Writ or Warrant.

* 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.*