Residential Possession Claims
It is already well known that the Coronavirus Act 2020 (“CVA 2020”) has created a series of issues for both landlords and tenants. Colleagues Paul Tapsell and Nicole Jennings have both written about the implications for possession proceedings when the first lockdown was initiated.
The ability of a landlord in either a commercial or residential situation to recover possession has been significantly affected. In addition to CVA 2020, Practice Direction (PD) 51Z and Civil Procedure Rule (CPR) 55.29 impose a temporary stay on many possession or enforcement proceedings. There are also processes for reactivation of a stayed claim and the issuing of new claims in PD 55C, along with temporary measures to restrict when writs and warrants of possession can be executed. All of which is a recipe for confusion and doubt.
This article provides an update as at the end of March 2021 based on questions I have been asked by both professional clients and members of the judiciary over the last few months. I will first provide a look at notice periods as there are various exceptions that should be highlighted. I will then set out the position on eviction and I will then provide an indication of what landlords can and cannot do, which I hope will be of use to both landlords and tenants.
Section 81 and Schedule 29 CVA 2020 extend notice periods in relation to possession proceedings for (most) residential tenancies. The relevant period started on 26th March 2020 and has been extended to 31st May 2021.
The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 which took effect from 29th August 2020 increased the minimum notice period to six months. The 2020 Regulation has now been superseded by a 2021 Regulation of the same name, which has extended the relevant period to 31st May 2021.
In relation to section 8 Housing Act 1988 (HA 1988) the current situation is that from 29th August 2020 to 31st May 2021, the notice period to be given in any section 8 notice will generally be six months. There are exceptions.
- A notice period of four weeks can be given if at least six months’ rent is unpaid at the time the notice is served. (where the landlord relies on one or more of grounds 8, 10 or 11).
- Three months’ notice can be given where immigration status is a ground for eviction or as a result of the death of the tenant (in an assured tenancy or AST). These relate to grounds 7 or 7B.
- The 2020 Regulation also disapplied elements of the CVA 2020 Schedule 29 so that the notice requirements for evictions involving anti-social behaviour are those in force from before the enactment of the CVA 2020. As a result, where a landlord relies on grounds 14A, 14ZA or 17, the notice period is two weeks. Where a landlord relies on ground 14, proceedings can be started immediately following service of the notice.
In relation to section 21 HA 1988, the minimum notice period to be given in a section 21 notice that is served between 29th August 2020 and 31st May 2021 is now six months.
Just to add an additional layer of complexity, Practice Direction 51Z (PD 51Z) brought in on 27th March 2020 stayed most proceedings for possession brought under CPR part 55 for a period of 90 days. This has been extended several times (thanks to CPR 55.29 and The Civil Procedure (Amendment No 5) (Coronavirus) Rules 2020) until September 2020.
Practice Direction 55C (which is new) sets out the reactivation process for stayed possession claims and whilst one might imagine all claims stayed up to September last year have now been reactivated, there is also a new form for all claims brought on or after the 3rd of August 2020 which includes a notice setting out any knowledge the applicant has in relation to the effect of Covid-19 on the defendant.
While it is possible to bring a claim and be granted an order for possession, where any subsequent eviction is required, there are still restrictions in place. The current regulation (there have been several short-term regulations during the pandemic) is the Public Health (Coronavirus) (protection from Eviction) (England) (No 2) (Amendment) Regulations 2021 (SI/2021/362) which takes the previous moratorium on evictions and extends it until 31st May 2021. There are of course exemptions for which eviction is still possible, these include where the notice, writ or warrant relates to:
- Trespassers who are persons unknown (CPR 55.6)
- Death of a tenant where the dwelling house is unoccupied (ground 7, Sched 2, HA 1988)
- Anti-social behaviour, domestic violence, nuisance or false statements (grounds 7A, 14, 14A or 17 of Sched 2, HA 1988)
- Substantial arrears of rent, some rent due or persistent delay in paying rent (grounds 8, 10 or 11, Sched 2, HA 1988)
Although not part of the regulations bailiffs have been instructed to reschedule evictions if anyone in the property is either self-isolating or displaying symptoms of Covid-19.
What can landlords do?
None of the restrictions appear to apply to possession claims against trespassers or those who have continued to occupy a residential property after termination of a licence or common law tenancy.
Landlords are not prevented by the CVA 2020 from initiating debt claims in respect of non-payment of rent, albeit that other legislation may affect enforcement, but that is not the subject of this note.
One of the things both landlords and tenants can do which can prevent the need for costly litigation is talk. Mediation is a great way to hold dialogue, make proposals and reach an agreement that is something both parties can live with. The outcomes parties can decide upon at mediation are infinitely more flexible than those a court is able to provide. As an example, I know of one farmer who has private tenants living in a farm cottage. One of the tenants has been unable to work due to periods of lockdown. The parties have agreed that the tenant will assist with milking the farmer’s cows at certain times in lieu of rent. Whilst this example will have a very narrow application elsewhere, it is an example of a solution that no court is in a position to order.
There has been a lot of activity in this area (along with commercial possessions). Things may still change, and this note may be out of date very quickly. As a result, legal advice should be sought on any specific or discrete issue, this note is not a substitute. If you have any questions or issues regarding this topic, do not hesitate to get in touch with our Clerks.