Opinion

Light at the end of the tunnel on possession claims

Published: 4th August 2020
Area: Real Estate & Planning

Light at the end of the tunnel on possession claims following the Government’s stay on possession proceedings and ban on evictions

23 August 2020 will see the end of the stay on possession proceedings and ban on evictions which were introduced as part of the Coronavirus Act 2020 legislation. However, it won’t be a case of back to business as usual as there are now additional steps landlords need to take in order to move their cases forward.

A new Practice Direction 55C, published on 21 July 2020, sets out how cases will work moving forward after 23 August. The new measures announced will stay in place until 28 March 2021. They could be extended further.

What is Practice Direction 55C?

Practice Direction 55C sets out how cases issued and stayed before 3 August 2020 will be affected and also deals with new claims brought after 23 August 2020.

For claims issued and stayed before 3 August 2020 a reactivation notice must be filed and served in order to get the claim listed or relisted for a hearing date or referred. Para 2.3 of the practice directions states that when filling a reactivation notice it must state the following;

  • the party filing and serving it wishes the case to be listed, relisted or referred; and
  • except in proceedings relating to an appeal, set out what knowledge that the party has to the effect of the Coronavirus pandemic on the defendant and their dependants.

If the landlord is seeking to reactivate a claim which relates to rent arrears, then the landlord must provide, with the reactivation notice, an updated rent account statement covering the past two years.

However, if a reactivation notice is not filled and served by 4:00pm on 29 January 2021 then the claim is automatically stayed.

If a claim was stayed and case management directions were made before 23 August 2020 and a party to the clam is filing and serving a reactivation notice, they must also in accordance to para 5.1 of the practice direction also file the serve the following information;

  • a copy of the last directions order together with new dates for compliance with directions;
  • a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and either
  • draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or a statement in writing that no new directions are required and that an existing hearing date can be met; and
  • a statement in writing whether the case is suitable for hearing by video or audio link.

If a party does not agree with the position on the directions then they must file and serve a notice in response within 14 days of the reactivation notice.

The above applies to cases which have been issued and stayed before 3 August 2020.

Cases which have been issued and stayed after 3 August and for any cases issued after 23 August 2020 there is no requirement to file and serve a reactivation notice. However, there is a requirement to serve a notice 14 days before the hearing date to demonstrate the following points;

  • the landlord has complied with the pre-action protocol and how they have done so; and
  • what knowledge the landlord has about the effect of the pandemic on the tenant and their dependants

There is also a further requirement that two copies of this notice must be taken to the hearing.

How will courts deal with the cases to be heard?

Prior to the introduction of the new practice directions any cases issued would need to be listed within eight weeks from the date of issue. Given the extensive backlog the courts will be facing following the stay on proceedings the eight week listing rule is suspended until 28 March 2021.

How will the new practice direction affect landlords?

In light of the new practice direction, there are some additional steps which landlords need to take in order to either, get a stayed case listed and heard and present information at a hearing. These steps will help you comply with the new procedures and avoid any further delays which may result in cases being adjourned when they are finally heard.

It is important to remember despite the stay being lifted, the three month notice period that must be given when serving a Notice Seeking Possession or a Section 21 notice is still very much in force until 30 September 2020. It is important to ensure any notices served are also served containing the correct prescribed information to ensure the notice is valid.

The pandemic has no doubt changed the way in which we are all working and even looking at exploring alternative action. These options may include applying for injunctions with or without notice, or even exploring working with other agencies who have the power to obtain closure orders or serve community protection warnings often leading to a community protection notice.

A copy full copy of Practice Direction 55C can be found here.

Contact us

For further information contact Habib Khan, Danielle Sodhi or Gary Ekpenyoung in our housing management team, who can guide, help support and you and your teams to deal with any housing management and litigation issues you face during these evolving times.

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