Niamh Meacock
Posted on 17 Sep 2020

Possession Proceedings: What will happen when the stay is lifted?

As a result of the COVID-19 pandemic, the government has introduced changes which restrict the termination of residential tenancies in England.

However, there has been some confusion about what the new rules mean and what effect they will have on landlords who wish to commence possession proceedings against a tenant.

The stay on possession proceedings

On 21 August 2020, the government announced that the stay on proceedings has been extended until 20 September 2020. This extension is broad and applies to all possession proceedings, the only exception being certain claims against trespassers.

Extension to the notice period

On 29 August 2020, the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 extended the minimum notice period a landlord must give a tenant before commencing possession proceedings from 3 months to 6 months. This will apply until at least 31 March 2021.

The extension will not apply retrospectively and notices served between 26 March 2020 and 28 August 2020 (inclusive) which stipulated a 3 month notice period, remain valid and do not need to be re-issued.

Whilst the extension applies to all Section 21 (“No fault”) notices, there are some exceptions with regards to Section 8 notices. These include:-

  • Where grounds 8, 10 and/or 11 are relied upon and at least 6 months' rent remains unpaid as at the date of the notice, 4 weeks' notice must be given;
  • Where ground 7 is relied upon due to the death of a tenant, 3 months' notice must be given;
  • Where ground 7A is relied upon as the tenant has been convicted of a serious offence, 4 weeks' notice must be given;
  • Where ground 14A is relied upon as there has been domestic violence in the property, at least 2 weeks' notice must be given;
  • Where ground 14 is relied upon due to nuisance or anti-social behaviour, no notice is required but proceedings cannot be started earlier than the date of service of the Section 8 notice.

As a result of this extended notice period, amendments have been made to the form landlords must use to serve a Section 21 notice (Form 6A). Therefore, it is important that landlords use the correct version when serving the notice on a tenant.

In addition to this, landlords must issue proceedings within 10 months of the date of the service of the Section 21 notice, rather than within 6 months.

Reactivation Notices

Practice Direction 55C, which will apply from 20 September 2020, requires a claimant to file and serve a “reactivation notice”, informing the court that they wish for their claim to be listed, re-listed, heard or referred.

However, this notice must only be filed if the stayed claim was brought before 3 August 2020 and a final order for possession has not been made.

Whilst the notice does not have a prescribed form, it must set out what knowledge (if any) that the claimant has as to the effect of the COVID-19 pandemic on the defendant and their dependants.

In theory, landlords can write "no knowledge" of the effect the pandemic has had on the defendant and the judge has no discretion to refuse to grant an Order on this basis. However, landlords are encouraged to make reasonable enquiries.

Although not necessary, landlords can explain in a smaller font at the bottom of the form the effect that the pandemic has had on them (i.e. the effect of not receiving rent from the tenant) if they feel it relevant.

If the claimant has not filed and served the notice by 16:00 on 29 January 2021, the claim will automatically be stayed.

Possession hearings

Practice Direction 55C has also suspended the standard period between issue of a claim form and hearing which would usually be not more than eight weeks.

The courts have no haste to progress claims and wish instead to do it safely and with no time pressures. This will continue until at least 28 March 2021.

When the courts re-open, they will prioritise the most serious cases involving anti-social behaviour, domestic violence and those where the landlord has not received rent for over a year. There will be a large backlog of cases and, as such, landlords who commence proceedings are unlikely to receive an order for possession anytime in the near future.

Enforcement of Possession Orders

The Civil Procedure (Amendment No. 3) Rules 2020 have made amendments to Part 83 of the Civil Procedure Rules (CPR), bringing an end to ‘no notice evictions’.

The new CPR Part 83.8A, which comes into force on 20 September 2020, means that for all evictions, whether by warrant or by High Court writ, at least 14 days’ notice must be given to the occupiers by inserting the notice through the letterbox or affixing it to the premises.

Nevertheless, this will not apply in cases involving trespassers and those where the Court has dispensed with the requirement to deliver a notice of eviction.

It is important to note that evictions will not be enforced in areas subject to local lockdowns.

If you would like to discuss any of the issues raised in this article, please contact Niamh Meacock or Andrew Baines in Michelmores' Property Litigation team.