Update: Covid-19 and Residential Possession Proceedings
The stay on possession proceedings for residential property in England
As a result of the Covid-19 pandemic, the Government brought emergency legislation into force known as The Coronavirus Act 2020 (the “Act”). The Act introduced several measures to protect residential owner-occupiers and tenants.
Those measures include extending the notice periods for section 8 and section 21 notices, served on tenants by landlords under the Housing Act 1988. It is important to note that those provisions of the Act are not retrospective, and so any notices served prior to 26 March 2020 are unaffected.
A temporary stay (or pause) was also imposed on all possession claims with the aim of protecting residential tenants and occupiers from eviction during the pandemic. The effect of the stay is that residential possession claims are put on hold.
For policy reasons, trespass possession proceedings against ‘persons unknown’ under CPR 55.6 are exempt from the stay, and so those claims can proceed as usual. Owing to the unclear drafting of the Court rules that brought in the stay, it is unclear whether trespass possession claims against persons who are known to the claimant are exempt.
The temporary stay was due to expire on 23 August 2020 but has now been extended to 20 September 2020 and a further extension cannot be ruled-out.
Possession claims can still be issued by landlords and other claimants, but they will be automatically stayed, unless they fall into an exempt category, such as trespass possession proceedings as described above.
Extension of the Stay
Once the temporary stay expires on 20 September 2020, a new Practice Direction will come into force and remain in place until 28 March 2021.
It is not known what that new Practice Direction will contain, but it is presumed that it will in substance largely reflect the present Practice Direction.
The present Practice Direction governs stayed possession claims after 23 August 2020 (but which are now subject to the extended stay until 20 September 2020).
What should I do now?
The Practice Direction provides that a claimant to a stayed claim issued on or before 3 August 2020 must file a ‘reactivation notice’ with the Court, asking the Court to lift the stay.
The reactivation notice must state that the claimant wishes to lift the stay on the claim and explain in writing what the impact of the pandemic has been on the defendant occupier and their dependents. That may of course be very difficult for claimants to do, especially if they have no knowledge of the defendant occupier’s circumstances.
Where the claim is based on rent arrears, the claimant must also provide an updated rent account for the previous two years.
On receipt of a reactivation notice, the Court must give the parties 21 days’ notice of a listed hearing. If the reactivation notice is not issued by 29 January 2021, the claim will automatically be stayed until further order.
Any claims issued between 3 and 22 August 2020 were automatically stayed, with the stay originally due to expire on 23 August 2020. Any claims issued from 23 August 2020 were not subject to the stay.
But as explained, all possession claims have now been stayed to 20 September 2020, and further extensions cannot be ruled out.
The fear for many claimants will be of a substantial delay for the outcome of their claims, even when the stay is lifted, as the Courts will likely face a considerable backlog of possession claims to process and determine cases.
Peter Knibbs is a Senior Associate in BPE’s litigation team. For more information on the impact of Covid-19 on residential possession proceedings please contact Peter on 01242 224433 or peter.knibbs@bpe.co.uk or another a member of the BPE Litigation team.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.