Residential Possession cases resume on 20 September 2020

The Master of Rolls, Sir Terence Etherton announced on 17 September 2020 that the stay of residential possession proceedings comes to an end on 20 September 2020. The stay was brought about in response to the COVID-19 pandemic as a means to protect tenants who had been adversely affected by the pandemic and who could not keep up with rental payments. There have been no evictions (except against trespassers) since 27 March 2020.

The Master of the Rolls introduced new guidance on 17 September 2020 on how possession proceedings between residential landlords and tenants will resume. It is important to seek legal advice early from Property Disputes Solicitors on the new procedures because parties will need to ensure full compliance with the new requirements. It is likely that there will be delays in getting possession hearings listed expeditiously given the backlog of cases and the reduced capacity of the courts.

Guidance on Case Priority

The Master of Rolls has issued guidance on case priority. The decision about as to whether or not a case is a priority is a matter for the judge (with priority given to cases issued before the stay commenced in March 2020). Listing is a judicial function.

These cases would generally be considered a priority:

• Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985.
• Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent, or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source.
• Cases involving alleged squatters, illegal occupiers or persons unknown.
• Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
• Cases with allegations of fraud or deception.
• Cases with allegations of unlawful subletting.
• Cases with allegations of abandonment of the property, non-occupation or death of defendant.
• Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

What does this mean for landlords with unpaid rent?

The stay on possession proceedings ends on 20 September 2020. This means landlords can start to issue proceedings to regain possession of residential properties from defaulting tenants. However, the guidance in Practice Direction 55C- Coronavirus: Temporary Provision in relation to possession proceedings states that no stayed claim is to listed or re-listed until landlords file and serve a written “reactivation notice” confirming that they wish the case to be listed (or re-listed).

Can commercial landlords commence evictions proceedings against tenants yet?

No, not until the end of 2020.

Commercial tenants will be protected from the risk of eviction until the end of 2020 helping businesses to protect jobs. Businesses will be protected from the threat of eviction until the end of the year, providing commercial tenants with greater security and protecting vital jobs, Communities Secretary Robert Jenrick has announced (16 September 2020).

This extension will protect businesses that are struggling to pay their rent due to the impact of COVID-19 from being evicted and help the thousands of people working in these sectors feel more secure about their jobs.

The government will also extend the restriction on landlords using Commercial Rents Arrears Recovery to enforce unpaid rent on commercial leases, until the end of the year.

The guidance is clear both landlords and tenants should continue to work together to agree rent payment options if businesses are struggling. In June, the government published a Code of Practice to support these discussions.

Download Possession Proceeding Listing Priorities in the County Court

Download Overall Arrangements for Possession Proceedings in England and Wales

Seeking possession: Section 21 and Section 8 Notices

A landlord can evict tenants who have an assured shorthold tenancy using a Section 21 or Section 8 notice, or both.

In most cases where it is available (and you should seek advice on the same), a Section 21 notice will be the preferred method of eviction, as it allows for accelerated possession proceedings. The court will be able to grant an order for possession ‘on the papers’, unless the tenant files a defence. It should be noted that the accelerated possession procedure does not allow for the recovery of rent arrears and a separate action should be brought for these if necessary.

A section 8 notice can be used if the tenant has broken the terms of the tenancy. Possession under section 8 can only be sought on one or more of the grounds set out in Schedule 2, i.e. possession cannot be obtained simply because the stated term of the tenancy has expired and the landlord would like the property back. There are 18 grounds, of which 8 are mandatory and 10 are discretionary.  If one of the mandatory grounds is made out, the court must grant the order. If the application is made on one or more of the discretionary grounds, then the court has a discretion as to whether or not to grant the order. 

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