Residential possession proceedings hit the headlines on Friday 21 August 2020 when it was announced, at the eleventh hour, that the current stay on all proceedings and evictions would be extended by a further 4 weeks. This is the second extension of the stay to take place since 27 March 2020 and has meant that no evictions (save against trespassers) have taken place since that date. This was seen as a necessary step to protect those who have been adversely affected by COVID-19, particularly those who have struggled to keep up to date with their rent payments.
The latest move, directed by the Lord Chancellor, was confirmed by the Master of the Rolls, Terence Etherton, after a number of groups applied pressure on the Government to take steps to avoid a “self-made homelessness crisis” (Shadow Housing Secretary, Thangam Debbonaire). In his confirmation, the Master of the Rolls stated:
“This 4-week extension to the stay relating to housing possession cases, will allow for further work to be done to prepare for the stay to be lifted which in many respects can be welcomed”
This therefore confirmed that the stay would not be lifted on 23 August as planned and that further amendments to the court rules would be made. The last minute u-turn has caused frustration for landlords who had already started preparing for life after the stay.
Where does this leave landlords?
The stay of possession proceedings has now been effected by changes made on 25 August to Civil Procedure Rule (“CPR”) 55.29, which simply substitutes the previous stay end date of 23 August with the new date of 20 September.
Additionally, CPR Practice Direction 55C (“PD55C”) has been amended to also take account of the further stay. PD55C was introduced to address how claims would progress after the stay and set additional requirements on Claimants to provide reactivation notices to have claims for possession brought back on track and to update the court as to the effect of the pandemic on Defendants and their households.
As a result of the latest extension, no eviction (save against trespassers) will take place before 21 September and no possession claims will progress until the stay is lifted. Any possession claims issued by the courts before 20 September will be held by the court for listing post-20 September. There is of course no guarantee that the stay will not be extended further.
Once evictions restart
Although, as has been proven by the above, the ban on eviction is subject to change, it is currently the case that all evictions where final possession order are already in place, can resume from 21 September onwards.
After a stay period of some 6 months, County Court bailiffs will be faced with significant backlogs and the relisting of dates may take many months. Those who regularly use County Court bailiffs will know that resources were stretched even before the pandemic began and some Courts had 6 month waiting lists for evictions. In some cases, a further delay such as this cannot and should not be tolerated, such as those matters involving actual or threatened violence.
In those cases where landlords simply cannot wait for a date, they should consider transferring the matter of enforcement to the High Court. If this is to be considered, a recent change to the Court rules should be noted.
The Civil Procedure (Amendment No. 3) Rules 2020 adds to Part 83, rule 83.A:
(2)…., a notice of eviction must be delivered to the premises not less than 14 days before the writ or warrant is executed
In practice, this undoes the previous position that often allowed enforcement of a possession order through the High Court without notice to the occupier. This therefore means that no tenant can be evicted from premises, other than where the occupiers are trespassers, without 14 days’ notice of the eviction date being given to the occupiers.
This notice period will, of course, cause a further delay to the eviction process. However, that 14 day wait is likely to be far shorter than the wait for a County Court bailiff and therefore, there will be cases where this route will be appropriate and should rightly be considered. In any event, rule 83.A also binds County Court bailiffs and they will also have to give 14 days’ notice once they have taken steps to fix an eviction date - once they have reached the landlord’s application to fix a date in their ‘full to bursting’ inbox, that is!
One thing is clear... post 20 September (or whenever the stay is eventually lifted) the Courts are going to be facing a huge backlog of possession claims. On this, the final update from the Government confirmed:
“When courts do resume eviction hearings they will carefully prioritise the most egregious cases, ensuring landlords are able to progress the most serious cases, such as those involving anti-social behaviour and other crimes, as well as where landlords have not received rent for over a year and would otherwise face unmanageable debts”
Which cases will make it in to the ‘egregious’ category remains to be seen and we can only hope that this includes those case where individuals have encountered serious ASB or are continuing to suffer as a result of this behaviour. If that isn’t the case, social landlords will have no choice but to continue to rely on the powers given to them in the Anti-social Behaviour, Crime and Policing Act 2014 to protect victims, particularly in applying for injunctions (which have been given top priority by the courts and which in our experience the courts have managed admirably despite court closures, remote hearings and staff working from home).
So what next? Fail to prepare, prepare to fail…
Whilst the ways in which the Courts will manage claims post 20 September 2020 are finalised, landlords now have time to seek out further information in order to quickly file reactivation notices (where necessary) and updates to the court on the effect of COVID-19 on Defendants, from 21 September onwards.
For proceedings issued at Court before 3 August 2020 and which have been affected by the current stay, a party must file and serve a “reactivation notice”. This is a written notice which must set out any knowledge that a party has as to the effect the pandemic has had on the Defendant and their dependents. This means that landlords will need to start engaging with Defendants now to seek out this information. In particular, the judges considering possession claims will want to know:
- How many adults and children currently reside at the premises?
- What financial effect, if any, has Covid-19 had upon the Defendant?
- What financial effect, if any, has Covid-19 had upon the Defendant’s household, including those who might contribute to their household income?
- What effect, if any, has Covid-19 had upon the Defendant’s/Defendant’s household’s employment status?
- Has Covid-19 impacted upon the Defendant’s earnings or otherwise upon their household income?
- What effect, if any, has Covid-19 had upon the Defendant’s physical health?
- What effect, if any, has Covid-19 had upon the physical health of any member of the Defendant’s household?
- What effect, if any, has Covid-19 had upon the Defendant’s mental health?
- Has Covid-19 resulted in the death of any of the Defendant’s relatives or dependents?
The Court will want to see that adequate steps have been taken to seek out this information and therefore, now that home visits are being arranged once again, steps should be taken to speak with the Defendant via every means reasonably possible. Whilst it is accepted that some tenants will not engage with their landlords, attempts to speak with them should take place in any event.
It will also be sensible to start considering what information should be provided to the court in cases where the landlord feels that possession claim should be given priority, such as serious ASB. Evidence from residents, staff, the police and other agencies may assist with this and therefore, now is a good time to start collating that information.
We can’t be sure that the stay won’t be further extended, but we can be ready to reactivate claims as soon as the stay is lifted and the hard work on that should start now.