Residential Possession and Coronavirus: FAQ

Rachel Garton, 4th September, 2020

Since COVID-19 struck, we've been busy helping landlords with a range of issues surrounding residential possession. In this blog we provide answers to the most frequently asked questions.

How much notice do I now need to give a tenant in a section 21 or section 8 notice?

On Friday 21 August, the Housing Secretary announced that the notice period to be given to tenants will be extended to 6 months, and that this extended notice period shall apply until ‘at least 31 March 2021’. This has now been implemented and applies to all Section 8 and Section 21 Notices served from 29 August 2020 with the exception of

Section 8 Notices served on grounds of:

(a) Anti-social behaviour (4 weeks’ notice)
(b) Domestic abuse (2-4 weeks’ notice)
(c) False Statement (2 to 4 weeks’ notice)
(d) Over 6 months of rent arrears (4 weeks’ notice)
(e) Breach of immigration rules ‘Right to Rent’ (3 months’ notice.

In addition, Section 21 Notice now remain valid for 10 months instead of 6 to accommodate the change in the notice period.

When will the stay on possession proceedings be lifted and who does it apply to?

The general stay on evictions will now be lifted on 20 September 2020. Paragraph 55.29 of the Civil Procedure Rules (CPR) has now been amended to reflect that.

As before, the stay will continue to apply to all possession proceedings (residential and commercial), with the principal exception of trespass proceedings against ‘persons unknown’.

Where a possession order was granted prior to the stay, all applications for warrants or writs of possession are also stayed.

Can I still issue a possession claim during the stay and, if so, are there any new rules that apply?

The stay does not prevent the issue of new possession claims. It simply means that, once issued, the proceedings will be stayed pending 20 September 2020. So, for example, if you have previously served a section 21 notice that is about to expire, you can issue a possession claim now.

However, a new set of procedural rules entered into force on 22 August 2020 and apply both to any new claims and previously stayed claims during the period from 20 September 2020 to 28 March 2021. These rules set out steps to take to ‘reactivate’ all stayed possession proceedings (i.e. those brought before 3 August 2020) and the requirements for any new possession claims (i.e. those brought from 3 August 2020 onwards). The rules are set out in Practice Direction 55C (PD 55C).

One key aspect of PD 55C is that it introduces the ‘Reactivation Notice’ (see para 2.1). A party who wishes to advance a stayed claim must file at Court, and serve on the other party, a Reactivation Notice which must:

(a) state whether the Claimant is asking the court to list, relist, hear or refer the claim;

(b) set out any knowledge the Claimant has as to the effect of the Coronavirus pandemic on the Defendant and his/her dependents;

(c) where the claim is based on rent arrears, enclose an up-to-date rent schedule covering the previous two years must be filed with the Notice; and

(d) where case management directions had been made prior to 20 September 2020, include a copy of the previous Order together with either a draft order setting out any additional or alternative directions required, or a statement that no new directions are required.

We will publish a more detailed article of PD 55C shortly.

Does the stay apply where a final possession order was made prior to the stay?

Where a final order has been made, an application for a warrant of possession can be made from 20 September 2020.

If an earlier appointment with the bailiff was cancelled due to the stay, the Court bailiff should action this and make a new appointment. It would be advisable to write to the Court to ask them to make a new appointment once the stay is lifted.

The new procedural rules set out in PD 55C do not apply where a final order has already been made.

The various notices in PD 55C require the landlord to set out his/her knowledge as to the effects of the Coronavirus pandemic on the tenant and his/her dependents. What if the landlord doesn’t have this information?

There is nothing in the rules to prevent a landlord stating that he/she does not have any knowledge as to the effect of Coronavirus on the tenant. However, we would advise landlords to make positive enquiries with tenants to try to find out if and how they have been affected by the virus. Approaching a hearing with all the information on the table is preferable to attending a hearing at which new information is brought forward – risking an adjournment. There is no prescribed form for the Reactivation Notice, or any other notice required under PD 55C.

By the same token, it is perfectly legitimate for landlords to set out in a Reactivation Notice, or other notice under PD 55C, the effect that the pandemic has had on him/her. This could be done, perhaps, in smaller font underneath the statement that the pandemic has had on the tenant.

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