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COVID-19 & the Stay on Possession Proceedings: An Update for Residential Landlords

If you are a landlord and have outstanding possession proceedings which were subject to the stay under Practice Direction 51Z and CPR 55.29 (‘the stay’) you may be wondering what comes next following expiry of the stay on 20 September 2020.

The Civil Procedure (Amendment No. 4) Rules 2020 (“the Rules”)

The Civil Procedure Rules have been amended to add a new Practice Direction 55C (‘PD 55C’) which came into force on 23 August 2020 is currently due to expire on 28 March 2021 (with reviews taking place throughout this period).

Practice Direction 55C (‘PD 55C’)

The new PD 55C affects all claims brought on or before 19 September 2020 (‘stayed claims’) and those brought after 19 September 2020 (‘new claims’) as set out below:

‘Stayed Claims’

For ‘stayed claims’ brought before 3 August 2020, if no possession order was made before the stay commenced on 27 March 2020, unless the court directs otherwise, the claim will not be listed, relisted, heard or referred to a Judge until one of the parties (usually the Claimant landlord) files and serves a written notice (a “reactivation notice”).

Once the reactivation notice has been filed and served the other party will have 14 days to reply.

The party filing and serving the reactivation notice must set out the following in their notice:

  1. Confirmation that they wish the case to be listed, relisted, heard or referred to a Judge;
  2. The knowledge the party has as to the effect of the Coronavirus pandemic on the Defendant and their dependents (except in proceedings relating to an appeal); and
  3. In possession claims based on rent arrears, the reactivation notice must also be accompanied by an updated rent account for the previous two years (except in proceedings relating to an appeal).    

Case Management Directions

For any stayed claim where case management directions had been made before 20 September 2020, the party filing and serving the reactivation notice must also file and serve:

  1. a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 20 September 2020; and
  2. either—
    (i) a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or
    (ii) a statement in writing that no new directions are required and that an existing hearing date can be met; and
  3. a statement in writing to confirm whether the case is suitable for hearing by video or audio link.

Trials

In stayed claims where a trial date had been set before the stay came into force on 27 March 2020, a reactivation notice (containing the relevant information) must be filed and served not less than 42 days before the trial date. If a party fails to file and serve the reactivation notice in time the trial will be vacated and the claim stayed.

‘New Claims’

For ‘new claims’ brought on or after 20 September 2020 and for ‘stayed claims’ brought on or after 3 August 2020, the Claimant must serve on the Defendant a notice setting out:

  • What knowledge they have as to the effect of the Coronavirus pandemic on the Defendant and their dependents; and
  • In a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirmation that the Claimant has complied with the Pre-Action Protocol and detail how the Claimant has done so.

This notice must be served not less than 14 days before the initial possession hearing and two copies of the same taken to the hearing.

Accelerated Possession Claims for Section 21 cases

In accelerated possession claims relying on a Section 21 notice, if brought on or after 3 August 2020, with the claim form, the Claimant must also file a notice setting out what knowledge it has as to the effect of the Coronavirus pandemic on the Defendant and their dependents despite the fact that this is a mandatory ground for possession!

When should I serve my reactivation notice?

If a reactivation notice is not filed and served in accordance with the requirements above by 4pm on 29 January 2021, the claim will be automatically stayed. If you miss this deadline you will need to make an application to lift the stay. However, any application to lift the stay is not required to meet the requirements under CPR 3.9 for relief from sanctions.

Hearings following the filing of a reactivation notice

Following the filing of a reactivation notice, the Court must, unless it directs otherwise, give at least 21 days’ notice to the parties of any listed or relisted hearing (not trial).

Where there is an existing hearing (not trial) listed in a case, in order to preserve any hearing date, a reactivation notice must be filed and served in good time to allow the Court to give the parties at least 21 days’ notice of this.

The usual rule that an initial possession hearing will take place within 8 weeks of issue has been removed giving the Court flexibility to list an initial hearing however long after the issue of a possession claim as is necessary.

Evictions

The Civil Procedure (Amendment No. 3) Rules 2020 amend Part 30 and 83 of the Civil Procedure Rules which affects cases where there is already a possession order. The amendments relate to the transfer of possession enforcement to the High Court and evictions (as set out below) and came into force on 23 August 2020.

Part 30: Transfer of Possession Enforcement to the High Court

Where —

  1. proceedings for the enforcement of a judgment or order for possession of land are transferred by the County Court to the High Court; and
  2. the land which is the subject of the possession order is located within the area of a District Registry,

then, unless the court orders otherwise on or following transfer, the transfer shall be to that District Registry and all applications made in the High Court in relation to such transferred proceedings (including for any stay or suspension of any writ) shall be made in that District Registry.

Part 83: Notice of Execution of Writs and Warrants of Possession

The new rule 83A(2) requires a ‘notice of eviction’ to be given to occupiers at least 14 days before a writ or warrant is due to be executed. The ‘notice of eviction’ must be addressed to all persons against whom the possession order was made and “any other occupiers” and be in the form prescribed by Practice Direction 83. The notice should be inserted through the letterbox of the premises in a sealed transparent envelope or if that is not practicable, affixed to the premises such as on the main door or on some other part of the land so that it is clearly visible.

The only exceptions to this rule are for trespasser cases (except those where a previous permission to be on the land had been given) and where the Court exercises its powers to dispense with the notice of eviction requirement.

The effect of these rules is to align County Court and High Court evictions so that High Court Enforcement Officers can no longer turn up without any warning to carry out evictions.

The Effect of the Coronavirus pandemic on the Defendant and their dependents?

You may be wondering what sort of information you need to include in your reactivation notice as to the effect of the Coronavirus pandemic on the Defendant and their dependents and what happens if you have no knowledge of any effect? Unfortunately, PD55C does not provide guidance as to the information that must be included in such a notice nor is there a requirement to carry out inquiries. Despite this, landlords are best advised to provide as much information as possible about the effect of the Coronavirus pandemic on Defendants and their dependents to avoid criticism later. If no such information is known, you should demonstrate what steps you have taken to engage with Defendants.

Information on the effect of the Coronavirus pandemic could include whether the defendant and/or any of the members of their household:

  1. Had or have the coronavirus, how long for and the severity and effect of symptoms;
  2. Whether they are vulnerable, at risk or otherwise shielding and why;
  3. If they are in employment, have been or are on furlough or have otherwise been made redundant; and;
  4. Whether rent arrears (if applicable) are caused/worsened by financial hardship as a result of the coronavirus pandemic, pre-existing arrears or a mixture of both.

The information contained in a reactivation notice / notice will be of particular importance to claims based on discretionary grounds in Schedule 2 to the Housing Act 1988, where the court needs to be satisfied that it is both reasonable and proportionate to make an order for possession. Especially if the notice you have or seek to commence possession proceedings based on is/was served was during the Coronavirus pandemic. You should be aware that this might well have a bearing on the claim’s outcome. Therefore, evidencing attempting to engage with tenants and consider the effect of the coronavirus pandemic on them and their dependents, as opposed to just fulfilling notice requirements as a tick box exercise is even more important.

Of course, the above is not a complete list and will differ from case to case dependent on Defendants engagement and their willingness to disclose personal information. If no such information is disclosed, you should detail how you have attempted to engage with them as explained above.

Important Reminder: Serving Notices

Please see our article ‘Stay on Possession Proceedings – extended until 20 September 2020’ in relation to amendments to the Coronavirus Act 2020 which came into force on 29 August 2020 and impose new notice requirements until 31 March 2021. There are new/updated versions of prescribed forms Form 6A (section 21) and Form 3 (Notice Seeking Possession) which must be used.

In response to the Government’s advice to landlords’ being not serve notices during the Coronavirus pandemic unless exceptional circumstances exist, we have been asking our clients to record consideration of Government advice and detail the exceptional circumstances which they believe exist. This is usually in a Covid-19 compliant cover letter to their notice to the tenant and/or a file note which is retained by them.

Our Advice To You

Don’t let the reactivation notice requirement catch you out. Stay on top of your claim. Engage with your tenant from now so that you can provide the Court with information about the defendant’s circumstances when required to do so and in any case before 29 January 2021. If your tenant has any vulnerabilities, have you considered these in your claim? Make sure you are able to evidence this, consider an impact assessment form.

Get in touch for further information, help and advice. We can help with a range of queries including drafting a reactivation notice or Covid-19 compliant letter to your tenant.

Useful Links

New Form 3 – Notice Seeking Possession of Property let on an assured tenancy or an agricultural occupancy

New Form 6A – Notice Seeking Possession of a Property let on an assured shorthold tenancy  

Schedule 29 of the Coronavirus Act 2020– New Notice Periods

 

Correct at time of drafting

19 October 2020

 

 

 

 

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