Stay on Possession Proceedings to be lifted: new rules for landlords
It has been over four months since the government introduced a variety of emergency measures to protect residential and commercial tenants from eviction during the outbreak of Covid-19. Under the Coronavirus Act 2020 (CVA 2020), residential landlords are required to give at least three months’ notice when serving section 8 and 21 notices to terminate Assured Shorthold Tenancies. Similarly, CVA 2020 prevents landlords of commercial premises from forfeiting a lease due to non-payment of rent. These provisions are currently in place until 30 September 2020, with power to extend if necessary.
In addition, Practice Direction 51Z (PD 51Z) imposed an automatic stay period on all new and existing proceedings brought for possession under CPR Part 55. Proceedings seeking to enforce an order for possession by a warrant or writ of possession are also stayed, as are appeals from possession orders that were in existence when the stay began. The stay ceases to have an effect from 25 June 2020 but CPR 55.29, a temporary rule which is in substantially the same form as PD 51Z, has the effect of extending the stay until 23 August 2020.
Most recently, the new Practice Direction 55C (PD 55C) has been published on 21 July 2020 and will come into effect from 23 August 2020 until 28 March 2021, effectively lifting the stay of all possession proceedings from 23 August 2020.
PD 55C sets out the arrangements for when the stay is lifted, including the requirement for landlords to ‘reactivate’ their existing stayed possession claims and to take additional steps in order to commence a new possession claim.
For existing possession claims brought before 3 August 2020, the main changes are:
Either party must file and serve a “reactivation notice” stating that they wish a hearing to be listed. The notice must set out the knowledge that the party serving it has to the effect of the pandemic on the defendant and any dependants.
For claims based on rent arrears, an updated rent account for the previous two years must also be provided.
Where case management directions were made before 23 August 2020, a copy of the last directions order with new dates for compliance, a draft order for new directions with a new hearing date or confirmation that the existing hearing date can be met, and a statement saying whether the case is suitable for remote hearing, must be filed with the reactivation notice.
Once these requirements are met, the court must give at least 21 days’ notice of any hearing listed or relisted in response to a reactivation notice. Nothing will happen to the claim if a reactivation notice is not served and if, by 29 January 2021, a reactivation notice has still not been served then the claim will be automatically stayed.
It will not be necessary to serve a reactivation notice where a final possession order has already been made.
In respect of possession claims brought after 3 August 2020, a notice setting out the knowledge that the claimant has as to the effect of Covid-19 on the defendant and any dependants must be:
Filed together with the claim form by a claimant using the accelerated possession procedure; and
Filed and served by the Claimant in all cases in advance of the hearing (and two copies brought to the hearing).
Social landlords must confirm that they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords.
This latest update is, ultimately, good news for those who are keen to get their possession claims back on track, however, it does mean additional work for landlords. As well as carrying out the steps outlined above, landlords would be best advised to engage with their tenants (such as by telephone or email) regarding their personal and financial circumstances in light of the pandemic. It is likely that a judge at a hearing will expect to see evidence that this has been done.
Finally, it is worth noting that the standard 8-week period between the issue of a possession claim and the hearing under CPR 55.5 will no longer apply. Unfortunately, it is likely that the courts - which were already suffering a backlog before the outbreak of coronavirus - will soon become overwhelmed with claims for possession, causing even further delay for landlords.
Isobel is a Graduate Litigation Executive with a background in property litigation and dispute resolution, having acted for a variety of clients including private landlords, tenants, letting agents, property specialists and local authorities.
If you require advice in relation to a possession matter then please contact Isobel Sanders of Bate & Albon Solicitors for a free discussion.