Possession proceedings – lifting the moratorium

Prior to the Coronavirus Act 2020, residential landlords were able to to serve a Section 21 eviction notice on a Tenant whose Tenancy was ending, providing two months’ notice for vacation. If a Tenant did not then provide vacant possession by the date given in the Section 21 notice, Landlords could issue possession proceedings to obtain a Possession Order. Residential possession in particular has experienced some of the strongest legal changes during these unprecedented times.

The Coronavirus Act 2020, which obtained Royal Assent on 25 March, inserted a new Practice Direction 57Z into the Civil Procedure Rules, which immediately prevented Landlords from being able to enforce any Order for Possession. A moratorium on all possession proceedings was also put in place until at least 23rd August under the Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020. As a consequence although possession proceedings could still be sent to the Court, the proceedings will not be dealt with until after 23 August.

Landlords across the country have been anticipating changes to the emergency legislation allowing them to regain possession of their properties and we are pleased to confirm that it seems unlikely the moratorium is going to be extended beyond 23 August.

New Rules have been made to impose additional requirements on parties pursuing Orders for Possession from 24 August and these new Rules will be in place until 28 March 2021.

The new Rules requirement Landlords to:-

1. Inform the Court and their Tenants in writing of any intention to resume previously issued proceedings via service of a ‘Reactivation Notice’

2. Provide relevant information in that Notice about what they know of the Tenant’s (and any dependants or other occupiers of the property)  personal circumstances affected by COVID 19, so that the Court can have regard to persons who are vulnerable, disabled or ‘shielding’ when considering whether to make a Possession Order.

3. Produce the full rent arrears history of the tenant in advance, rather than at the Hearing itself.

These requirements allow the court to deliver justice and protect public health, while balancing a Landlord’s entitlement to recover possession of their property.

Landlords who had not started any Possession Claim in the Court but were waiting to see what happened with the moratorium will be able to make their application for a Possession Order after 23 August 2020.

Whilst this is a definite improvement on the situation for Landlords it is important to appreciate that a huge backlog has built up and that will take time to work through.

Recognising the backlog issue; the new Rules also provide that Courts can fix a date for a Possession Hearing either on or after issue of proceedings. Prior to this guidance, the Hearing was fixed at the time proceedings were issued.

Further, the Rules  also suspend the previous requirement that Possession Hearings would take place no more  than eight weeks after the start of the possession claim. Landlords can start their Court claims but the dates fixed for the Hearings may be a good 3-4 months down the line.

Our Dispute Resolution Team deals with many contentious probate issues and can be contacted on DRTeam@herrington-carmichael.com or 01276 686222.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Stephen Baker
Partner, Head of Dispute Resolution
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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