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Residential Tenancies – Stay on Possession Proceedings Lifted

13th October 2020

As a result of the Covid19 pandemic, the government introduced a stay on claims for possession of residential properties to protect tenants from eviction during the difficult period.  This stay initially covered the period between 27th March 2020 and 25th June 2020 but was later extended until 20th September 2020.  As of 21st September this has now been lifted, which means that it is now possible to reactivate previous claims and issue new claims for possession under the following procedures.

Claims Issued before 3rd August 2020

For any claim issued before 3rd August 2020, a Reactivation Notice needs to be served to allow the claim to continue. The Reactivation Notice must:

  • Confirm the desire to reactivate the claim;
  • Confirm the impact that the pandemic has had on the Defendant; and,
  • If directions were made before 20th September, either new proposals for directions or confirmation that the hearing date can be met.
  • In any rent claims, a 2 year rent account must also be provided.

Claims Issued after 3rd August 2020

For any claim issued after 3rd August 2020, it is unnecessary to reactivate the claim, however, the Claimant must produce a notice which:

  • Sets out that the Claimant has complied with the relevant pre-action protocol; and
  • Confirms the impact that the pandemic has had on the Defendant and their dependants as far as the Claimant is aware;

In cases of possession proceedings which are commenced under Section 8 of the Housing Act 1988 (‘HA1988’), the above notice must be served on the Defendant at least 14 days before the hearing listed to deal with the matter takes place.

In cases of possession proceedings which are commenced under Section 21 of the HA1988, known as accelerated possession proceedings, the notice must be filed with the Court at the same time as the Claim Form.

Further Guidance – Accelerated Possession Claims

As above, the Court will require a reactivation notice for any claim issued before 3rd August 2020. The Court may then, in the absence of objection by the parties, list a hearing to enable the tenant to obtain advice or to consider the issues of the case further.  Cases are set to be referred at a “manageable frequency” and therefore this process is likely to be somewhat slower than usual.

Case Marking

The impact of the Covid-19 pandemic is a clear focus point of the Courts at this time, and Covid-19 Case Marking has been introduced to provide Claimants and Defendants with the opportunity to highlight any particular difficulty created by the pandemic.  Either party can apply to the Court  at any  time for the case to be Covid-19 marked and the judge will do so in the absence of any objections.  The case marking system will also be used to aid the Court in prioritising the caseload and identifying cases which are suitable to be settled.

The advantage for Defendants is that they can draw the Court’s attention to any circumstances or policy decisions made by the Claimant which are particularly relevant to the case.  For example, a stay on mortgage repayments should be considered if a lender is seeking to possess a property for the non-payment of a mortgage.

The information that Defendants must provide is:

  • Details of the hardship faced by the Defendant;
  • Whether material arrears were outstanding before March 2020;
  • Whether the Defendant has been placed on furlough;
  • Whether the Defendant has obtained universal credit since March 2020;
  • Whether the Defendant has offered or paid a proportion of the arrears;
  • Whether the Defendant has been unable to earn because of Covid-19;
  • Whether the Defendant has been shielding;
  • The Defendant’s proposals for paying the arrears.

Case Marking is also advantageous to Claimants by providing an opportunity to highlight particular difficulties faced by them due to the pandemic, such as landlords that have not received rent during the stay on possession claims.

The information that Claimants must provide is:

  • Details of the particular hardship faced by the Claimant as a result of Covid-19;
  • Whether the Claimant has received assistance under a Covid-19 scheme, including any borrowing by a landlord in respect of the property.

Timescales

The arrangements for the listing of cases will be altered so that, in order that the Courts can manage the backlog of cases, the standard period of 8 weeks between the issue of the claim and the hearing will no longer apply.  The parties will be given 21 days’ notice of a hearing; however cases will generally be listed for 3 months ahead of time.

When serving a notice in accordance with Section 8 of the HA1988, there are a number of grounds which can be relied on and these are set out in Schedule 2 of the HA1988. The amount of notice that has to be given is determined by which grounds are being relied upon. The new legislation has altered each of those notice periods as follows:

  1. Grounds 1–6, 9, 13, 15 and 16: 3 months has been extended to 6 months;
  2. Ground 7A: returned to a notice period of 4 weeks for a periodic tenancy and 1 month for a fixed term tenancy.
  3. The notice period under grounds 8, 10 and 11 for rent arrears has been reduced to 4 weeks if the arrears are greater than or equal to 6 months, or 6 months if the rent arrears are less than 6 months.

In addition, the notice period to be provided in a notice sent in accordance with Section 21 of the HA1988 has been extended to 6 months.

Landlords therefore need to be aware of the increased time that it may now take to secure possession of their property.

If you are a landlord and you would like to pursue possession of your property from your tenant and would like some further advice in relation to this process, please contact Louise Palmer, Solicitor in our Dispute Resolution team, on 01543 267231 or by email at lpalmer@ansonssolicitors.com

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