COVID-19: recent changes to enforcing possession of residential property

Jane Curtis-Tanton, 4th February, 2021

Updated 10 March 2021 - see update section towards the end of this blog.

The Previous Regulations – 17 November 2020

On 5 November 2020, it was announced by the Housing Secretary that possession orders would not be enforced in England during the national lockdown and whilst the resultant restrictions were in place with exception of certain exemptions. Under the Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 this was approved and came into force on 17 November 2020 (“the Previous Regulations”).

The New Regulations – 11 January 2020

On 11 January 2021, the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 came into force (“the New Regulations”).

Between 11 January 2021 and 21 February 2021 the New Regulations prevent attendance at a residential property for the purpose of:-

  • executing a writ or warrant of possession; or
  • delivering a notice of eviction.

There are exemptions however and where the Court is satisfied that an exception applies residential possessions can still take place. When making a possession order, the Court will state whether the order meets the requirements for one of the exemptions. Where an exemption is not identified as applying, landlords can apply to the Court (on notice to the tenant) under CPR 23 to ask the Court to determine whether an exemption applies.

The exemptions where possession of residential property can be enforced are as follows:-

  • Against trespassers;

  • Where the landlord is issuing on the grounds of anti-social behaviour, nuisance, domestic violence or false statements (under grounds 7A, 14, 14A or 17 of Schedule 2 to the Housing Act 1988);

  • Where the tenant has died (under ground 7 of Schedule 2 to the Housing Act 1988) - the person attending must be satisfied that the residential property is unoccupied;

  • Where there are substantial arrears of rent (under grounds 8, 10 or 11 of Schedule 2 to the Housing Act 1988). The amount of unpaid rent arrears outstanding must be in an amount equivalent to at least six months' rent.

Under the Previous Regulations a landlord could only seek to enforce a possession order in cases where rent arrears were nine months or more at the date of the possession order and the arrears had accrued before 23 March 2020. The New Regulations provide that the minimum amount of rent outstanding must be six months with the rent accruing at any time.

Therefore, unless one of the above exemptions applies, residential possessions will not take place in England until after 21 February 2021.

After 21 February 2021, possession may still not take place where properties are in an area subject to Tier 2, 3 or 4 Local Lockdown restrictions under the government’s Local COVID Alert Level System.

Update as at 19 February 2021

The government is to lay a Statutory Instrument to extend the current protections for tenants preventing enforcement until 31 March 2021 (England only).

In addition the government is piloting a new mediation service as part of the possession access process to support landlords and tenants to resolve disputes before formal Court action takes place. This will be a free service for tenants and landlords who agree to use it and the pilot launched on 1 February for a period of 6 months. The mediation service will be available at the review stage if the case is considered suitable and the parties agree.

Update as at 10 March 2021

A press release from the Housing Secretary, Robert Jenrick has announced a package of measures to support business owners and residential tenants. Read the press release here.

Restrictions on residential evictions in England will now continue until at least 31 May 2021. Exemption will still apply for serious cases such as anti-social behaviour and where a tenant has accrued rent arrears to the value of 6 months. It is not yet clear whether these will be the same as under the current regulations.

Increased notice periods to residential tenants will also apply until at least 31 May 2021.

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