Residential possessions claims during the pandemic
18th May 2020
90 Day suspension of claims until 25 June 2020
As you may be aware, all possession claims brought before the lockdown were put on hold by the courts on 26 March 2020 for 90 days regardless of whether they were just issued, directions were being complied with or a possession order was about to be made. The 90 day stay which comes to an end on 25 June 2020 could be extended for a further 3 months if the courts decide this is the right thing to do, although that decision has not yet been made.
With the property market being put back on its feet recently and sales and rental activity being allowed and providing a “reasonable excuse” for being out of the home, it may be that an extension will not go ahead but we will have to see.
Frustratingly for landlords claims brought before the lockdown would have nothing at all to do with the Coronavirus Pandemic but nonetheless have been caught up in the freeze and tenants have at least 3 months’ grace in properties. In seeking to enforce the Government’s promise that no one would be evicted for Coronavirus-related issues, the courts have given a free pass to those who previously were to be evicted for non-Coronavirus-related issues.
Not only did the courts stop any action at all in relation to possession claims but bailiffs and High Court Enforcement Officers were stood down immediately. They could not enforce Warrants or Writs even where the courts had already made Possession Orders or dates for eviction appointments were in place.
The courts have clarified recently that claims for possession by landlords to evict tenants may be sent to court during the 90-day stay. They will be issued by the court but will not progress beyond this until the suspension is lifted. As these claims will be one step closer to being processed, it is well worth getting any claim in the queue as it is anticipated that there will be tens of thousands of possession claims filed up and down the country when the courts open up to possessions again.
With a view to restricting a rush, the Government is proposing that before a possession claim can be brought, settlement attempts are made between landlords and tenants to agree a payment plan in relation to rent arrears and avoid possession. This assumes of course that tenants will be able to not only pay the rent but an additional amount towards the arrears.
Currently, there is a Pre-Action Protocol (PAP) set out in the Civil Procedure Rules (CPR), which govern the civil courts, which must be used by social housing providers before making a claim for possession of property and it is proposed that something very similar is rolled out in the Private Rented Sector (PRS). There can be consequences for a landlord failing to comply with the PAP before bringing a claim.
Landlords and tenants are actively encouraged to try and resolve the issues between them in these unprecedented times. However, if it is not possible to resolve issues then eviction notices may be served by landlords on tenants. These have been amended in this Coronavirus period and the new notices must now be used whichever route you seek to pursue under the Housing Act 1988, be it Section 21, which is a no-fault possession route or if you are pursuing tenants for unpaid rent or breaches of the tenancy then notices under Section 8. Both routes now give the tenants 3 months’ warning of a potential claim.
The Government is proposing that in respect of the PRS, the PAP for Possession Claims by Social Landlords is extended to them making private landlords take certain actions before pursuing court action or face penalties.
Currently the PAP for Possession by Social Landlords states that its aim is to encourage more pre-action contact and exchange of information between the landlord and tenant. The parties are to avoid litigation and try and agree settlement if possible.
Issues that will need to be considered by landlords are in relation to the vulnerability of the tenant and in particular their mental health state. Consideration has to also be given by the landlord to any potential Equality Act 2010 issues in relation to discrimination.
The landlords will be encouraged to contact tenants if rent is unpaid and to agree affordable sums to repay the arrears. Rent statements will need to be provided by the landlord to the tenant quarterly. If the tenant is entitled to benefits, the landlord will have a duty to assist in that endeavour. The landlord will also be encouraged to make a claim with the DWP in order to redirect housing benefit payments to pay the rent direct to the landlord. It is clear in the current PAP that possession should not be started against a tenant who demonstrates that they are seeking to resolve the situation and making payments towards the arrears.
If a landlord does start possession proceedings, he or she will have to produce evidence of their compliance with the PAP.
The PAP can be abandoned if the tenant refuses to respond or engage with the landlord but attempts must be shown and the court will expect evidence of non-compliance by the tenant.
New court possession forms have been produced. The Accelerated Possession form used on the expiry of Section 21 notices has more than doubled in the number of pages to be completed requiring substantially more information and evidence in order to satisfy the court that it should make a possession order. Copies of all gas safety certificates must be appended as must the How to Rent Guide given to the tenant and the Energy Performance Certificate in addition to the tenancy agreement(s), Section 21 notice, certificate of service and tenancy deposit certificate.
The usual requirements by a landlord will need to have been met in relation to the deposit, Energy Performance Certificates, gas safety certificates and the Tenant Fees Act 2019. From 1 July 2020, landlords will also have to provide electrical safety certificates to tenants.
The change in the PAP has not yet happened and if landlords are in a position to bring a claim for possession, they may consider doing so now. This will also get their claim in line ahead of the rush that is likely to ensue once the stay is lifted.
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