Resuming possession claims – what should landlords expect?

Landlords will be relieved to hear that the Government intends to resume possession claims on Monday 24 August 2020 and the current stay will not be extended further.  Plans are already underway to deal with the resumptions of claims and on Friday 17 July, the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 were laid before Parliament. These rules make further amendments to Part 55 of the Civil Procedure Rules by inserting a “Coronavirus- temporary provision”. This refers to a new Practice Direction 55C which will make provision for how claims, including appeals, are to proceed when the stay comes to an end.

The new Practice Direction 55C has not yet been published but the explanatory memorandum to the new rules provides information on what will be included. The changes will be temporary and will last until 28 March 2021, subject a review during that time. The proposed new arrangements include:

• Where a possession claim is already underway, the landlord will need to inform the Court and the tenant, in writing, that they wish to resume their claim by serving a ‘reactivation notice’ once the stay is lifted.
• Landlords will be required to provide the Court with relevant details regarding the tenant’s circumstances including the effect of the pandemic on the tenant and his or her dependants so that the court can consider vulnerability, disability, social security position and those who are “shielding.” This information will need to be given in the reactivation notice or before the hearing for existing claims and in the particulars of claim for new cases.
• The Court will fix a hearing date on or after the issue of the possession claim to enable cases to be spread out and avoid the “‘bunching” of hearings.
• The standard period of 8 weeks between the issue of a possession claim and the first possession hearing is to be temporarily suspended, again to allow cases to be spread out appropriately and to take account of court capacity.
• The landlord, so far as practicable, will be required to produce the full arrears history before the hearing as opposed to at the hearing.

What does this mean for private sector landlords?

We will need to wait for Practice Direction 55C to be published to see exactly what the new rules require and what effect this will have on new and existing claims. The explanatory memo acknowledges the impact the changes will have on landlords stating:

“The temporary arrangements for possession proceedings will have an impact on landlords who have been unable to pursue proceedings for eviction and will be required to demonstrate that they have engaged with their tenants in an effort to find a solution before making a claim. However, given the wider circumstances of the public health implications of Covid-19 and the need to prevent homelessness, and the arrangements that have been put in place to support the rented sector, the government believes that the resumption of cases should be handled in a sensitive and proportionate manner.”

As was anticipated, it seems inevitable that landlords will experience further delays once the stay is lifted as hearings are spaced out and the courts tackle the backlog of claims and warrant requests. Given the temporary suspension of the standard 8-week period between the issue of the claim and the first-hearing, landlords are likely to be waiting longer than 2 months for a first hearing. Just how long they will have to wait will largely depend on the capacity and working arrangements of the individual courts.

The Practice Direction will presumably set out further details of the ‘reactivation notice’ and whether there will be a prescribed court form for this. Landlords will be required to be pro-active in restoring their cases and updating the Court and the tenant on the current situation. Presumably from the information provided in the notice (or in the particulars of claim for new cases), the Court will assess how a hearing should be dealt with, whether remotely or in person, having regarding to the tenant’s circumstances. The plans to spread out hearings and avoid ‘bunching’ suggests that face-to-face hearings will resume, where appropriate, and where it is safe to do so.

Where the landlord is seeking a possession order for rent arrears, the Court will want to see evidence that they have engaged with the tenant to try and find a solution before starting a court claim. This may be a reference to the new pre-action protocol for private landlords that is expected, although this is likely to require a further amendment to the Court Rules and presumably there will be a further announcement about this over the next few weeks.

Other than delay the court process, the changes are unlikely to have much of an effect on the outcome of section 21 or mandatory Ground 8 rent arrears claims. This is because provided the ground is satisfied, or in the case of section 21 claims, provided the landlord has complied with all the procedural requirements, the judge has no choice but to grant a possession order. The date of possession can only be stayed by 6 weeks if the tenant can show exceptional hardship. While Coronavirus factors may be very relevant to a tenant’s request for postponing possession, ultimately, the judge has no power to delay possession for longer than 6 weeks.

What can landlords do to avoid delays?

Landlords who wish to recover possession will have little choice but to proceed with their court claims unless they are able to negotiate a settlement with their tenant. Given the current circumstances, some delays will be unavoidable. However, landlords relying on the section 21 procedure may be able to avoid waiting for a court hearing by using the paper-based accelerated possession procedure. The accelerated procedure is only suitable for section 21 claims where there is a written tenancy agreement and where the landlord only seeks possession and not another remedy such as a money judgment for rent arrears. Section 21 claims have grown increasingly complex in recent years with technical failures leading to claims being dismissed. It is recommended that landlords seek specialist advice at the outset as getting the process right the first time can save time and cost.

Landlords should also be aware that the lifting of the stay and the resumption of claims does not change the current requirement to give tenants at least 3-months’ notice when serving a section 21 or section 8 notice. The temporary changes to notice periods introduced by the Coronavirus Act 2020 will continue to have effect until 30 September 2020.

We have a team of specialists who can advise you on your case and the best procedure for regaining possession of your property. Please contact us and we would be happy to discuss your case with you.

*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.*