The stay on residential possession proceedings has been lifted – what happens next?

Due to the Covid-19 pandemic, there has been a stay on residential possession claims since 27 March, which was lifted on 20 September 2020.

The Courts now face the mammoth task of dealing with a 6-month backlog of cases together with new cases brought about as a result of the Covid-19 pandemic.  This note sets out a summary of the procedure both for re-starting existing claims and bringing new possession claims.

It should be noted that the clear direction from the courts is that no claim should be recommenced “without careful efforts to reach compromise”.

Re-starting existing possession claims

Claims made before 3 August 2020

If a possession claim was started before 3 August 2020 and the landlord still wishes to pursue it, the landlord will need to send the Court and the defendant a reactivation notice.

The landlord will need to identify in the reactivation notice whether the case should be considered as qualifying under any of the priority categories listed (see below). The reactivation notice must set out how the tenant and any dependents have been affected by the Coronavirus pandemic, for example, whether they have suffered loss of income or have been shielding.  The landlord will need to take steps to determine this.

If the case concerns rent arrears, an update on rent arrears over the past two years is to be provided to the Court.  It should be considered if it is appropriate to make a possession claim and whether alternative means of settling the matter can be used such as agreeing a repayment plan.

Unless a reactivation notice is sent to the Court by 4pm on 29 January 2021, the claim will automatically be stayed.  A formal application to restore the claim will be necessary after this deadline.

Claims made on or after 3 August 2020

A reactivation notice is not necessary for claims made on or after 3 August 2020.  However, you should provide the Court with information about the impact that the Covid-19 pandemic has had on the tenant as soon as possible.  A reactivation notice is not required if you have already received a final possession order.

Priority of cases

The Courts will deal with urgent/priority claims first which include:

• Significant anti-social behaviour
• Extreme rent arrears accrued – at least 12 months’ rent or (in the case of a private landlord) 9 months’ rent if that is at least 25% of the private landlord’s income
• Squatters, illegal occupiers or persons unknown
• Domestic violence where possession of the property is important
• Fraud or Deception
• Unlawful subletting
• Abandonment, non-occupation or death of the defendant
• The property was allocated by an authority as temporary accommodation and is specifically needed for re-allocation as such
• Other (further information to be included)

Subject to the above, claims issued before the stay commenced on 27 March 2020 will be prioritised.

If the Court does not receive information as to how the tenant has been impacted by the Covid-19 pandemic, it may not be able to progress the case until such time as it receives that information.

COVID-19 case marking

A case may be marked as a Covid-19 case where either the landlord or tenant have suffered financial difficulties due to the Covid-19 pandemic.  Certain details as to the hardship suffered must be provided to the Court.  If a case is marked as a COVID-19 case, it will affect the order in which it is listed for a hearing and may affect the Judge’s decision where he is able to exercise his discretion.  Where a tenant has marked the case as COVID-19, a landlord should carefully consider whether to proceed.

Next steps for claims under the standard procedure (S8 cases)

A new step has been introduced into possession claims, which is the Review. This is a date when the Judge will review the case. It is also to give the parties an opportunity to consider settlement. The parties will be given a minimum of 21 days’ notice of the Review, which takes place without the attendance of the parties.

A meeting will be arranged on the Review date between the tenant and their duty solicitor or adviser.  The claimant and their legal representative should be available (by telephone if necessary) in order that the tenant/their adviser can make contact to discuss the case. If both parties agree to mediate, they can use the pilot scheme for mediation where the time limit is one hour.

At the Review, a Judge will consider the case at the end of the sitting day on the basis of the papers received and whether the parties have come to any agreement.  The Judge may stay or adjourn the case if an agreement has been reached.  If there is no agreement and all papers are in order, the Judge will make an order regarding the next steps to allow a substantive hearing to take place.

If a substantive hearing is required, it will be listed a minimum of 28 days after the Review date for 15 minutes.  The Judge will consider adjourning the case if the consequences of a possession order will be serious in the context of the Covid-19 situation.

Accelerated possession proceedings (S21 cases)

As accelerated possession claims are generally dealt with on paper, these will be dealt with by the Court when the substantive possession hearings are over each day.

How long will it take to get a possession hearing?

The Courts are facing a back log of cases and are not working at full capacity due to social distancing therefore it will take longer than the usual 8 weeks to obtain a possession hearing.  Parties are encouraged to explore other avenues as much as possible including agreeing a repayment plan and exploring access to benefits and mediation.  Much will depend on whether the case is considered a priority or not as to when it is listed.  If not considered urgent, it may be many months before a hearing is listed.

Warrant of possession

Once an order for possession is obtained, if the tenant does not leave by the date specified, a landlord may apply for a warrant of possession to obtain a bailiff appointment for them to evict the tenant.  Whether bailiffs are able to carry out evictions will depend on local lockdown rules.  Bailiffs have been issued guidance that there should be no evictions (save for very serious cases) in the weeks leading up to and over the Christmas period.

If a bailiff’s appointment was cancelled due to Covid-19, these will be rescheduled in order of urgency (if known) and otherwise in date order.

NEW CLAIMS

S8 or S21 Notices

The National Residential Landlords Association (NRLA) “Pre-Action Plan: Managing arrears and avoiding possession claims” sets out 5 steps to take before any notice is issued.

From 29 August 2020 to at least 31 March 2021, when serving a S8 notice in respect of rent arrears or a S21 Notice, the minimum notice period is 6 months, unless the value of the arrears equates to at least 6 months’ rent, where the notice period is 4 weeks. Where a S21 Notice is served on or after 28 August 2020, it will be valid for 10 months.

Starting a new possession claim

The new guidance makes it clear that the Court should only be involved as a last resort in relation to possession claims.  It is being strongly recommended that accelerated possession proceedings should only be brought if there is no alternative. The landlord should try and resolve matters with the tenant wherever possible. The NRLA Pre-Action Plan sets out the “9 golden rules” for dealing with rent disputes.  If the Pre-Action plan is not followed, any new claim could be adjourned.

However, it may not be possible to resolve matters with the tenant and it is possible to commence new claims for possession. Where a new claim is commenced, a landlord should provide the Court with information about the impact that the Covid-19 pandemic has had on the tenant.

The Court will not fix a hearing date when the claim is issued.  New cases will be listed for a Review.  The date of the substantive hearing will usually be fixed at the Review.

Should you require any assistance with residential possession proceedings, please contact a member of our team.