Residential possession: the Covid aftermath

Landlords of commercial properties will know all too well that there is a moratorium on forfeiting commercial tenancies for non-payment of rent until at least 25 March 2022.

Landlords of residential properties may be surprised to learn that there is no corresponding moratorium in respect of residential tenants; however, there is a labyrinth of legislation and procedural modifications to be navigated before a landlord can bring their case to court.

Notice periods

There have been many amendments during the pandemic to the notice periods which landlords are required to give their tenants before they can bring possession proceedings.

They are presently expected to return to normal (pre-Covid) lengths after 30 September 2021.

This article assumes that landlords have given all relevant notices and are now in a position to issue possession proceedings.

Commencing proceedings

All possession proceedings are now subject to the “overall arrangements” introduced on the recommendations of the Working Group on Possession Proceedings in September 2020. Some of the arrangements affect possession cases started before the pandemic and subject to a stay of proceedings; this article deals only with new cases.

The overall arrangements encourage claimants not to start new claims for possession without careful efforts to reach compromise. There are references to the National Residential Landlords Association’s Pre-Action Plan: Managing arrears and avoiding possession claims, and to MHCLG’s guidance for private landlords, social housing landlords, tenants of private landlords and tenants of social housing landlords, encouraging advice, discussion and compromise, with court proceedings as a last resort.

Tenants also now have access to Breathing Space and Mental Health Crisis Moratoriums, in force from 4 May 2021, which provide eligible individual debtors with problem debt a period of protection from their creditors. Debtors need to apply to a debt advice provider for a moratorium.

Assuming all efforts at a compromise fail, the landlord will have no option but to start proceedings for possession.

‘Normal’ possession proceedings

Previously, all possession proceedings were issued, listed for hearing within the “standard period” of between four and eight weeks, and served on the defendant. That no longer happens; the proceedings are issued and referred to the judge for directions.

The review date

The court initially fixes a review (R) date and notifies the parties. The notice of the R date gives the defendant details of a duty legal adviser to contact on or before the R date and is sent with information for both claimants and defendants. The information urges the parties to continue to engage with each other, and to inform the court if they reach agreement.

Fourteen days before the R date, the claimant has to:

• provide the court and the defendant with bundles;
• advise the court of the claimant’s knowledge of the effect of the coronavirus pandemic on the defendant and their dependants; and
• confirm to the court that the claimant will be available during the R date to discuss the case by telephone with the defendant or an adviser.

On the R date a judge will review the case at the end of the court day.

The parties do not attend. If they have settled the case, or agreed directions, the judge will make an agreed order. If the case is not settled, the judge reviews the bundle and the court file and, if the claimant’s documents are in order, will fix a substantive (S) hearing for 28 days after the R date. If the claimant’s documents are not in order, the judge can dismiss the claim or give directions.

Covid-19 case marking and prioritisation

Case files can be “Covid-19 marked” if either the claimant or defendant provides information to demonstrate to the court that they have been adversely affected or suffered hardship as a result of the pandemic. Case marking may assist the court with deciding when to list a case for hearing, with case management, and with exercising any discretion which the court has regarding whether to make an order for possession.

Certain factors will also be taken into account in deciding whether to prioritise the listing of a particular case. These include anti-social behaviour, very significant rent arrears, squatters, domestic violence, fraud, unlawful subletting, abandonment of the property, non-occupation or death of the tenant and reallocation of temporary accommodation.

The substantive hearing

This is a 15-minute hearing that all parties must attend. Unless the parties resolve the case, the judge will decide the claim or give case management directions leading to a trial or further hearing.

The case may be adjourned if there is no sign that advice has been made available to the defendant and the consequences of the order may be serious in the context of the pandemic.

Other than the fact that these S hearings will be listed individually, to maintain social distancing, rather than block-listed as previously, they are likely to be very similar to the traditional possession hearing pre-pandemic.

Accelerated possession proceedings

These are proceedings, usually without a hearing, brought where an assured shorthold tenancy created in writing has been brought to an end by service of a notice under section 21 of the Housing Act 1988. When commencing such proceedings, the claimant has to file a notice setting out what knowledge that party has regarding the effect of the pandemic on the defendant and their dependants.

These claims will be dealt with having regard to the priorities set out above. Where the parties agree, or there is no objection, the judge can direct that an R date be listed so that the defendant can receive duty scheme advice and assistance. Any hearing directed by the judge after considering the papers will normally be an S hearing.

Enforcing the possession order

The enforcement process has not changed; the defendant has to be given 14 days’ notice of eviction. The notice, served by the court, gives clear information as to the date of the proposed eviction and the right to apply to the court for suspension or postponement, and of available routes to advice.

This article was first published in Estates Gazette on 21st August 2021.