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Stay on possession proceedings – Extended until 23 August 2020

Following an announcement late on Friday 5 June 2020 it is understood that PD51Z will be extended in its current form until 23 August 2020.

You will recall that PD51Z was initially implemented to stay (put on hold) on all possession proceedings brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ, from 27 March 2020 until 25 June 2020.

It is now understood that the stay in possession proceedings will be extended until 23 August 2020 meaning that parties will be unable to take any steps in ongoing possession proceedings. All new possession proceedings (apart from Rent Act 1977 cases) can continue to be issued but will be automatically stayed until 23 August 2020. This will include all possession proceedings: residential and commercial.

The Court of Appeal in Arkin v Marshall & Anr [2020] EWCA Civ 620 has made it clear that the stay in possession proceedings under PD51Z is to be upheld in almost all cases. Therefore, the Courts will enforce the stay in possession proceedings other than in “exceptional circumstances”. The Court of Appeal acknowledged that there “might be exceptional circumstances in which such a stay could be lifted, in particular if it operated to defeat the expressed purposes of PD51Z itself.”  Whether exceptional circumstances apply to your possession case would need to be assessed on a case by case basis.

In addition, the Court of Appeal in the case of London Borough of Hackney v Okoro [2020] EWCA Civ 681 has confirmed that an appeal from a possession order made in a claim commenced under CPR Part 55 is also subject to the stay under PD51Z.

This is unfortunate news for landlords who in most cases will be unable to continue with new or ongoing possession proceedings until at least 23 August 2020. Furthermore, there is serious concern that once the stay is lifted there will be an overwhelming number of cases attempting to progress through the County Court. Landlords are therefore best advised to seek legal advice to consider alternative options in dealing with ongoing breaches of tenancy.

With that said, landlords should note that the stay in possession proceedings does not apply to claims against unknown trespassers under CPR 55.6 or the making of interim possession orders. Furthermore, parties are permitted to make applications to the Court for case management directions where such directions are agreed between the parties. The Court are permitted to consider such applications on the papers to avoid hearings in person and to ensure that possession proceedings are able to proceed effectively once the stay is lifted.

 

Coronavirus Act 2020

 The Coronavirus Act 2020 which requires landlords to serve 3 months’ notice for possession is to continue until at least 30 September 2020 (there is reserved power to extend this if required). Landlords are required to serve 3 months’ notice on all tenants in all circumstances with the following types of tenancy:

  • Assured tenancies (S.8 Housing Act 1988 NOSPs);
  • Assured shorthold tenancies (Section 21 notices);
  • Secure tenancies (s.83 Housing Act 1985 NOSPs);
  • Rent Act 1977 protected/statutory tenancies;
  • Introductory tenancies;
  • Demoted tenancies;
  • Flexible tenancies.

These notice provisions under the Act do not apply to agreements without security including, for example:

  • Licences;
  • Contractual tenancies;
  • Tenancies granted in the course of employment;
  • Tenants who have lost their security of tenure (e.g. for failing to occupy the property as their only or principal home).

Landlords should continue to ensure that they are using the statutory prescribed forms when serving 3 month notices for possession.

Correct at the time of drafting

8 June 2020

 

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