Expert Insights

Expert Insights

Lifting the stay on residential possession proceedings: where are we now?

It has been a little over three months since the stay on all forms of possession proceedings was lifted on 21 September 2020 but residential landlords should bear in mind the added restrictions which remain in place. 

At the end of August 2020, the Government introduced further changes restricting the termination of residential tenancies in England.  These restrictions currently remain in force until 31 March 2021. For more details please click on the link for our insight: Amendments to the Coronavirus Act 2020: Further restrictions on residential tenancies.  No forfeiture proceedings can, however, be issued in respect of commercial premises for non-payment of rent with the Government’s stay on the termination of business tenancies having been extended from 31 December 2020 to 31 March 2021 (for further details, please click here ).

Since 21 September, it has been possible to issue new claims for possession of private rented property and to reactivate existing possession proceedings.  However, detailed rules were introduced in the form of Practice Direction 55C of the Civil Procedure Rules 1998 governing the issue of new claims and reactivation of stayed claims.

In addition, the Judiciary issued a guidance document entitled: Overall Arrangements for Possession Proceedings in England and Wales shortly before the stay was lifted explaining how cases would be dealt with by the Courts.  HM Courts and Tribunals service also issued guidance for landlords and tenants in the private and social rented sectors to explain the possession action process which can be found here.

For landlords bringing possession claims, there are now additional steps in the process such as a review date when the Court considers listing the claim for a substantive hearing.  The review date also provides an opportunity for the tenant to obtain free legal advice from the duty scheme advisor.  In addition, cases are now listed in order of priority with cases involving rent arrears exceeding 12 months’ (or 9 months’ where that amounts to more than 25% of a private landlord’s total annual income) or squatters or illegal occupiers being progressed more expeditiously.  In certain cases, a landlord must set out any knowledge which it has on the effect of the Coronavirus pandemic on the Defendant and dependants and provide an updated rent account.

The Ministry of Justice has not yet published statistics for the current quarter as to the number of new possession claims which have been issued since the stay was lifted but the statistics for July to September 2020 indicate that 1513 reactivation notices were received by the Courts across the private and social rented sectors during September 2020.  Claims are progressing but additional procedural requirements are likely to mean that landlords used to bringing claims will see some additional delay in obtaining a possession order.

While new claims can be issued and existing claims reactivated, there is currently a ban on enforcement of possession orders until 11 January 2021.  This is enshrined in The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 which came into force on 17 November 2020.  The Regulations prevent, except in certain specified circumstances, an eviction from a residential dwelling in England.  The exceptions include where there are trespassers, nuisance or substantial arrears of rent (as defined in the legislation).  The introduction of tier 4 has not altered the procedure or the current restrictions.  However, with a further national lockdown, it is always possible that the Government may introduce more changes to the restrictions.

This is an area of fast-paced and unprecedented change so please visit our Essential Residential Hub and our timeline on the latest developments in the private rented sector to keep up to date with the latest developments.

The ban on enforcement of possession orders has been extended from 11 January 2021 to 21 February 2021. Please refer to our latest guidance on residential evictions which can be found here.

Please do not hesitate to contact Lauren Fraser, Laura Bushaway or your usual Charles Russell Speechlys contact if you have any queries.  This insight is not a substitute for legal advice on the specific circumstances of the case.

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