This post is by Robert Brown, housing barrister of Selborne Chambers in London and fulfils a promise he made to answer the questions which were asked at his webinar last week, which we did not have time to deal with.
Tessa invited me last week to hold a webinar on how the pandemic has changed possession proceedings.
There was a lot to cover in a short time and a number of really important and interesting questions were raised. I promised to put together a short post looking at some of those, so here it is.
First, a quick recap.
As I attempted to explain, the context for the changes to possession proceedings is that there was lengthy stay to almost all possession proceedings for about half of last year, and the minimum notice requirements for most types of possession claims have been subject to a series of temporary changes.
The five key ways that I identified that possession proceedings have been changed are
- The requirement for reactivation notices in most stayed claims,
- The requirement for pandemic notices at the hearing of new claims,
- The requirement for a pandemic notice to be filed with the claim form in any new claim brought under the accelerated possession procedure,
- The new innovation of a “review” hearing, and
- The creation of a “substantive” hearing.
There is a lot of detail underpinning these five developments.
Readers might be interested in CPR PD55C (available here), the Overall Arrangements for Possession Proceedings (here) and templates for some of the documents that I discussed in the webinar (which can be found here).
So, to the questions.
These are just intended to be brief answers – please get advice on any individual situation before seeking to rely on these. They are based on the position as at 17 February 2021, but please remember that things are changing very quickly in this field at the moment.
Q: Am I required to reactivate, even when I have been provided a hearing date from the Court?
A: Not all stayed claims require a reactivation notice and no reactivation notice is needed for any claim brought after 19 September 2020.
Q: How can I find out how long to get a hearing for my Sec 21 Accelerated Claim, once the tenant has been served?
A: Accelerated claims are dealt with on the paper in first instance.
Q: When a judge awards possession, do they give a date, or is a date stayed (and I have to apply for a date) once the lockdown is officially over?
A: A possession order will almost always include a date for possession to be given up (there are some exceptions but these do not often arise in the private sector). If that date passes without possession being given up then the landlord can apply for a bailiff’s warrant. Enforcement of warrants for many types of possession orders is currently stayed until 21 February 2021 (by The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021; as the name suggests, this only applies in England, there are different rules in Wales). It has already been indicated that this is likely to be extended for another month or so.
Q; My tenant says he is high risk of Covid due to asthma. Will this ‘effect on the defendant’ give cause for my Accelerated Sec 21 to be thrown out of Court?
A: As the Overall Arrangements document shows, courts can mark cases as being Covid-19 cases. It is, however, difficult to see how this could be a defence to a claim based on a s.21 notice unless there is some disability discrimination aspect to this.
Q: I (thought) I had served an eviction notice on a tenant in an HMO (ground 14 – antisocial behaviour ) in mid-November. The move was predicated n the new reduced notice period for this type of eviction in September. The eviction is being managed by a specialist consultant To date I have not heard a thing – Should I have at least received a court date by now? What can I do in order to find out what stage of the process I am in – and if the consultant has been doing his job properly?
A: The normal requirement for the first court hearing date to be within 4 and 8 weeks of the issue of the claim has been temporarily removed. It sounds as if you should ask the consultant whether the claim has been issued yet.
Q: I obtained a possession court order in March the day before the eviction ban. I also won an appeal hearing. Do I have to serve a reactivation notice?
A: Probably not – the requirement to serve a reactivation notice does not apply to a stayed claim in which a final order for possession has been made. I say “probably” because there doesn’t appear to be any definition of what a “final” order for possession is.
Q: Do these procedures also refer to the Lenders repossessing the Landlord’s property?
A: Yes – well, sort of. The procedures do not expressly say that, but they apply to Part 55 possession claims, and possession claims brought by mortgagees are covered by Part 55. The Practice Direction also reminders lenders of the need to bring the mortgage pre-action protocol checklist to the hearing of any claim.
Many thanks to Robert for preparing these answers.
You can watch the webinar in full here:
You can see the rest of the webinars in the series here.