Housing: restart of possession proceedings
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Louise Heath
New notice seeking possession
The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2020 SI No 924 substitute a new prescribed form of Housing Act (HA) 1988 s21 notice for use by landlords of assured shorthold tenants on or after 2 September 2020. The new version of Form 6A (Notice seeking possession of a property let on an assured shorthold tenancy) contains the prescribed template and is set out in a Schedule to the regulations. An online version has been published for ease of use by landlords with accompanying notes for completion.
New periods for possession notices
Coronavirus Act (CA) 2020 Sch 29 initially provided that landlords were temporarily required to give at least three months’ notice of intention to seek possession of premises let under a secure tenancy, a flexible tenancy, an assured tenancy, an assured shorthold tenancy, an introductory tenancy, a demoted tenancy or a Rent Act 1977 protected or statutory tenancy. The temporary provision made by CA 2020 Sch 29 was due to end on 30 September 2020. The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI No 914 came into effect on 29 August 2020. The regulations: (1) extend the relevant period during which CA 2020 Sch 29 applies, so the temporary measures will be in force until 31 March 2021; (2) lengthen the required notice period to six months in most cases; and (3) reduce the length of notice periods required for cases where a shorter period is considered justified, such as serious rent arrears, anti-social behaviour and domestic abuse.
The changes are complex and are summarised in both an explanatory memorandum accompanying the regulations and in a letter sent by the UK government to all local housing authorities in England: Extension of emergency measures requiring residential landlords to provide extended notice periods (Ministry of Housing, Communities and Local Government (MHCLG), 7 September 2020). The policy justification for the changes was set out in a press release: ‘Government has changed the law so most renters have a 6 month notice period’ (MHCLG, 28 August 2020).
A helpful steer through the maze on the validity of notices is provided by the Section 21 Flowchart on the Nearly Legal website, updated by Giles Peaker on 16 September 2020. For its part, the UK government has published non-statutory Technical guidance on eviction notices (MHCLG, 21 September 2020).
New possession claim forms and defence forms
A new version of the prescribed form for bringing a claim for possession under the accelerated possession procedure in England was published on 11 September 2020: Form N5B England: Claim form for possession of a property located in England (accelerated procedure) (assured shorthold tenancy other than a demoted tenancy). There is a new defence form for use by defendants: Form N11B England: Defence form (accelerated possession procedure) (assured shorthold tenancy) where the property is located wholly or partly in England. Corresponding new forms are available for Wales. The other possession claim forms and defence forms remain unaltered.
The lifting of the stay on possession claims1See also pages 10 and 14 of this issue.
The general stay on possession claims lifted on 20 September 2020 with the expiry of the dates contained in Civil Procedure Rules 1998 (CPR) 55.29. Ahead of that date, the chair of the House of Commons Justice Committee wrote to the lord chancellor asking for an early parliamentary debate to be held on the arrangements for handling possession claims post-stay: Letter from Sir Robert Neill MP (10 September 2020).
Guidance on possession cases post-stay
The House of Commons Library has been regularly updating its excellent free briefing paper, Coronavirus: a ban on evictions and help for rough sleepers (Briefing Paper No 08867). The latest version was published on 20 September 2020.
The UK government has updated its COVID-19 Guidance for landlords and tenants and Guidance for local authorities (MHCLG, 28 March 2020; last updated 21 September 2020). It has also produced guides on the new arrangements for possession cases for both landlords and tenants:
The Financial Conduct Authority (FCA) has issued an updated and final version of its guidance to lenders about handling mortgage arrears in the national crisis: Mortgages and coronavirus: additional guidance for firms (FCA, September 2020). Section 7 of the guidance (page 17) deals with repossessions. It restates that lenders should not engage in repossession activity before 31 October 2020 and, after that date, should proceed with restraint.
There is also updated non-statutory guidance for local authorities in England about how to handle enforcement of standards in private rented accommodation during the continuing COVID crisis: Guidance for local authorities: COVID-19 (coronavirus) and the enforcement of standards in rented properties – non-statutory guidance for local authorities on enforcing standards in rented properties during the COVID-19 outbreak (MHCLG, 21 September 2020).
HM Courts & Tribunals Service (HMCTS) has published templates of the suite of documents it will use when communicating with parties about various aspects of possession proceedings: Property possession: information for claimants and defendants (15 September 2020; last updated 17 September 2020).
To help avoid unnecessary possession proceedings, the National Residential Landlords Association has published Pre-Action Plan: managing arrears and avoiding possession claims (NRLA, September 2020). It provides practical advice and support to sustain tenancies where tenants are facing financial difficulties, and that includes ensuring that tenants and landlords properly communicate with each other as soon as a problem arises, that the landlord understands the tenant’s needs and circumstances, and that suitable arrangements can be agreed where possible to address rent arrears that might be building.
Reactivating older claims
To ensure that the courts only need to deal with possession claims that are still being actively pursued, a reactivation notice must be filed and served by one of the parties in respect of most possession claims that were brought before 3 August 2020: CPR Practice Direction (PD) 55C. A reactivation notice may be given by claimant or defendant and must contain the information required by PD 55C. There are no prescribed forms, but on 15 September 2020, the UK government published templates that encourage the parties to supply the required information:
Some purported reactivation notices were filed and served before 20 September 2020, the date when the stay on possession claims imposed by CPR 55.29 lifted. These probably represent the taking of a step in a stayed claim and are consequently unlikely to be of any legal effect: Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 as applied to possession cases by Arkin v Marshall [2020] EWCA Civ 620 at para 51. It may be expected that these will either be treated as nullities or the defect waived (presumably by exercise of powers in CPR r3.10 or by judicial dispensation using PD 55C para 2.1).
Readers accessing PD 55C are reminded that it was amended on 22 August 2020 by the 124th update – practice direction amendments.
Requirements in newer claims
Claims brought after 3 August 2020 do not require reactivation notices, but some of them will be subject to additional requirements. For example, CPR PD 55C para 6.2 provides that in such a claim brought under the accelerated procedure (to which CPR Part 55 section II applies), the claimant must file with the claim form, for service with it, a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the defendant and their dependants.
Although it might be thought onerous for such a requirement to be imposed, on a claim initiated on or after 3 August 2020, by a PD that did not come into effect until 23 August 2020, the PD was in fact published before the earliest of those dates: 123rd update – practice direction amendments (17 July 2020).
Listing possession cases
Listing of court hearings is a judicial function. However, in recent years, the listing of possession claims has become an essentially administrative task, given the volumes involved. That led to block listing of scores of possession claims, for short hearings on the same day.
The new statement, Overall arrangements for possession proceedings in England and Wales (17 September 2020), produced by the Master of the Rolls’ Working Group on Possession Proceedings, represents a restatement of judicial control of the process. All possession claims will now be placed before a judge for listing directions. In most cases, except accelerated proceedings, the judge will initially direct the listing of a ‘review’ at which there will not be a hearing but rather a judicial scrutiny of the claim on the papers. The claimant and defendant will be expected to be available for communication with each other, and any of their advisers (see below), on the review date. The judge will then give any necessary directions for the hearing or other directions for the future progress of the claim. In due course, possession hearing days are unlikely to involve the listing of more than 10 cases.
In addition, judges will identify which cases – in what may well be a significant backlog of old claims and a rush of new claims – should be accorded priority. The master of the rolls has published non-statutory guidance to assist with that task: Possession proceeding listing priorities in the county court (17 September 2020).
Representation in possession cases
Civil legal aid remains available (subject to means and merits) for most defendants in possession claims. From 21 September 2020, all notices of the issue of a possession claim given by the courts in England and Wales will be accompanied by material encouraging the taking of early advice and the securing of representation through legal aid where applicable.
This may help reverse the decline in the take-up of legal aid in housing cases. In the three months prior to lockdown, there was a 27 per cent decrease in housing work starts compared with the same quarter the previous year: Legal aid statistics quarterly, England and Wales January to March 2020 (Ministry of Justice, 25 June 2020). There were also decreases in completed claims (16 per cent) and in expenditure (12 per cent) in housing cases.
For those who fail to secure early legal advice, the recent stay on possession claims provided an opportunity for the Legal aid Agency (LAA) to extend and modify the Housing Possession Court Duty Schemes (HPCDS) in three ways. First, tendering exercises were undertaken to ensure HPCDS coverage at county courts without previous provision: ‘Civil news: expressions of interest invited for HPCDS work’ (LAA news story, 18 August 2020) and ’Civil news: opportunity to tender for HPCDS work’ (LAA news story, 23 July 2020).
Second, contracts for existing scheme providers were all extended to 30 September 2021: ‘Civil news: extension of HPCDS contracts to 30 September 2021’ (LAA news story, 21 July 2020).
Third, the scheme itself was modified in various respects, including by making provision for advice to defendants on the dates on which reviews of possession claims (see above) are listed, whether advice is given face to face or remotely: Standard civil contract (Housing Possession Court Duty Scheme) 2013 (LAA, 1 October 2018; amended in May and August 2020). An important feature of the HPCDS is that it enables advice and representation to be provided to any defendant irrespective of means or merits.
Orders for possession by consent
Part of the new ethos, in the management of possession claims, will be to encourage appropriate settlements. In some cases, there will be agreement between the parties that a possession order be made. In cases where possession orders can properly be made by ‘consent’ (see Baygreen Properties Ltd v Gil [2002] EWCA Civ 1340), the courts will approve them.
In the expectation that such orders will become more common, the director of homelessness and rough sleeping at MHCLG wrote to all local housing authorities in England on 18 September 2020 stating:
Some applicants may seek support from their local authority homelessness team after having signed a consent order or agreed to possession of the property. If a local authority receives an application where someone has agreed to leave the property on the basis of unaffordability, they should undertake a homelessness assessment to determine the duties owed to the applicant as usual, but should note that signing a consent order, or agreeing an order for possession where the property is unaffordable, is not, in itself, a reason to find an applicant intentionally homeless (emphasis in original).
Stays and suspensions of warrants
Changes to CPR Part 83, relating to the enforcement of court orders, took effect from the lifting of the deferred stay on possession claims on 20 September 2020: Civil Procedure (Amendment No 5) (Coronavirus) Rules 2020 SI No 889. The position is now consistent for enforcement of possession orders in the High Court and the county court. Occupiers will receive 14 days’ notice of an eviction appointment in writing on Form N54 (Notice of eviction).
Applications to stay/suspend warrants are now likely to be listed, whenever possible, in possession hearing day lists so as to ensure that assistance under the HPCDS is available to defendants from a duty adviser.
Winter evictions
The UK government has announced that there will be ‘a “winter truce” on the enforcement of evictions, with no evictions permitted in England and Wales in the run up to and over Christmas except in the most serious circumstances, such as cases involving anti-social behaviour or domestic abuse … To achieve this, guidance will be issued to bailiffs that they should not enforce possession orders in the weeks of Christmas’: ‘Government sets out comprehensive support for renters this winter’ (MHCLG press release, 10 September 2020) and Robert Jenrick MP, House of Commons Written Statement HCWS446, 10 September 2020. The dates covered by the ‘truce’ are 11 December 2020 to 11 January 2021.
Contrast with business repossession cases
The lifting of the stay on residential possession claims, the majority of which concern rent arrears, represents a stark contrast with the continuing embargo on action against business tenants who are in rent arrears. For example, the Business Tenancies (Protection from Forfeiture: Relevant Period) (Coronavirus) (England) (No 2) Regulations 2020 SI No 994 came into force on 29 September 2020 and extended to 31 December 2020 the prohibition on forfeiture for arrears of rent in such cases. Similar restrictions on enforcement action for rent arrears in business tenancy cases are imposed by the Taking Control of Goods (Amendment) (Coronavirus) Regulations 2020 SI No 1002, which also came into force on 29 September 2020.
 
1     See also pages 10 and 14 of this issue. »

About the author(s)

Description: Jan Luba QC - author
Jan Luba QC is a senior circuit judge and a designated civil judge.