Residential Possession Claims

Following the recent changes implemented to the possession claims process (as a result of COVID-19), the Government has announced that the current suspension of possession claims will not be extended beyond 23rd August 2020. This means that possession claims can recommence from Monday 24th August 2020.

As a result, various amendments are proposed to the Civil Procedure Rules but have not yet been implemented. The Government propose to introduce the “Coronavirus-temporary provision”. This is a new measure to deal with how possession claims, including appeals, are to proceed, when the stay comes to an end on 23rd August 2020.

Whilst the measures have not been implemented yet, the Government has issued some provisional guidance and information to illustrate what these new measures will involve. For now, we know the new measures are “temporary” and will last until 28th March 2021.

However, landlords should be aware that measures will be reviewed on an ongoing basis so they could be in place for longer than currently expected.

What are the new measures?

The new measures will include the following:

• Where a possession claim is already in progress, the landlord will need to inform the Court and their tenant, in writing, that they wish to resume their possession claim by serving a “Reactivation Notice” once the stay is lifted, i.e. on or after 24th August 2020.
• Landlords will need to provide the Court with relevant details about their tenant’s “circumstances”, which will include the effect that COVID-19 has had on the ability of tenants and their dependants (if applicable) to vacate the property. This will allow the Court to consider matters such as vulnerability, disability and those who are shielding when dealing with any possession matters. This information will need to be given in the Reactivation Notice or before the hearing (for existing claims) and in the particulars of claim for new possession claim matters.
• The Court will set a hearing date on or after the issue of the possession claim and will ensure that cases are spread out over time to ease pressure on the already busy Court system. This may mean that a possession hearing could take longer to be heard than usual.
• The usual period of 8 weeks between the issue of a possession claim and the first possession hearing will be temporarily suspended, again to ease pressure on the court system. 
• The landlord, if possible, will be required to produce a comprehensive arrears history before the hearing, as opposed to at the hearing as usually required.

The impact of the changes for private landlords

It is difficult to say what the specific impact for landlords will be until the measures are actually put into place. What we currently know from the Government’s initial guidance is:

“The temporary arrangements for possession proceedings will have an impact on landlords who have been unable to pursue proceedings for eviction and will be required to demonstrate that they have engaged with their tenants in an effort to find a solution before making a claim. 

“However, given the wider circumstances of the public health implications of COVID-19 and the need to prevent homelessness, and the arrangements that have been put in place to support the rented sector, the Government believes that the resumption of cases should be handled in a sensitive and proportionate manner.”

The changes will no doubt lead to further delays for landlords in gaining possession of their properties. It is expected that the Courts will have a significant backlog of outstanding possession claims and requests for possession orders to work through. 

As a result of the temporary suspension of the standard 8 week timescale between issue of possession proceedings and the date of the first possession hearing, it is more than likely that landlords will have to wait longer than 2 months for a first hearing. The reality of the delay will only become apparent when the Courts start to work through the backlog of possession claims and turn around times will vary from Court to Court.

It is not clear at this stage whether the Courts will resume possession hearings on a face to face basis, by phone or a combination of both. We anticipate that the Courts will assess the needs and vulnerability of parties when making any such decisions, ensuring strict compliance with social distancing guidelines in place as a result of COVID-19. This may result in further delays when the Courts try to accommodate parties’ needs.

The Reactivation Notice

When the measures are put into place, the Government will no doubt set out further guidance and information about the specific required form of the Reactivation Notice. It is apparent that landlords will need to play an active role when reactivating their possession claims due to the new requirements for them to update the Court and the tenant with further information. 

Landlords will need to be able to show that they have tried to engage with their tenants in the hope that proceedings can be avoided.

Rent arrears

Where a landlord seeks possession of their property as well as the rent arrears, the Court will want to see documented evidence to show that the landlord has engaged with the tenant to try and find a solution to the situation before taking a decision to issue proceedings. Courts encourage and require the parties to engage in pre-action correspondence and take steps to resolve disputes in usual circumstances, in any case.

Delays

Aside from the likely delays that the above changes will cause to possession claims, the final outcome of the proceedings is likely to be the same as before. So long as a landlord satisfies the necessary grounds to bring a claim under the Section 8 route, or in the case of the Section 21 route, the landlord has complied with the strict procedural requirements, the judge may still grant a possession order against the tenant.

Having said that, the Government could introduce more measures which will have an impact on the final outcome of a possession hearing.

Under normal circumstances, the date of possession can only be delayed by 6 weeks after grant of a possession order if a tenant can show “exceptional hardship”. Whilst COVID-19 factors may be relevant to the tenant’s request for a delay to possession of the property, as it stands, the judge may not delay possession for more than 6 weeks.

Landlords who rely on the Section 21 route may be able to avoid waiting for a Court hearing by using the paper-based “accelerated possession” procedure. The accelerated procedure is only available for the Section 21 route where there is a written tenancy agreement and where the landlord only seeks possession and nothing else, such as a judgement for rent arrears. 

Alternatives to court proceedings

Landlords who seek to recover possession will have no choice but to follow possession proceedings unless they are able to reach an agreed settlement with their tenant, avoiding the need for court action. 

It remains that parties should always try to settle their disputes without the need for court action, one of the main advantages being to save significant costs which can be incurred in long drawn out litigation.

Notice periods under Section 21 and Section 8

Finally, landlords should be made aware that just because the stay on proceedings will be lifted from 24th August 2020, this does not change the current requirement to give tenants at least 3-months’ notice when serving a section 21 or section 8 notice. As it stands, this requirement is in force until 30th September 2020 and may be extended beyond that date.

If you have any queries about possession proceedings or would like to take legal action to recover possession of a property, please speak with Mr Russell Davies, Partner and Head of our Dispute Resolution Team on 01332 225381.