Possession in the Post-Covid World

This briefing note examines procedural issues in residential possession claims after the lifting of the General Stay imposed March 2020. It deals with the procedures involved both in bringing a possession claim and the new rules that will determine how such claims will be listed and heard. It discusses the impact of the changed notice periods in Forms 3 and 6A, the requirements of new PD55C and the ‘Overall Arrangements for Possession Proceedings’.

As part of the legislative changes made to deal with the slew of stayed residential possession claims starting up after the lifting of the general stay, PD 55C will apply from 23 August 2020 to 21 March 2021. The emphasis is on spreading out hearings to allow for greater social distancing in courts for face-to-face hearings and effectively lengthening the process of getting possession in most cases. As a separate but related measure, many notice periods required when serving Section 8 and Section 21 Notices have been increased.

1. New Notice Periods

Provisions

New versions of Form 3 (Section 8) and 6A (Section 21) are at https://www.gov.uk/guidance/assured-tenancy-forms

Section 21 Notices must now give 6 months’ notice and landlords must in most cases issue their claim within 10 months of the date on the Form.

Section 8 notice periods are more complex and depend on the Ground relied on. There is some doubt as to how they will all be applied in practice but working from Form 3 itself:

Ground 14 (alone or with any ground other than 7A) – no notice period

Ground 14A, 14ZA or 17 (without Ground 7A or 14) – 2 weeks

Ground 8, 10 or 11 (without Ground 7A or 14) where ‘at least 6 months rent is unpaid’ at service of the notice – 4 weeks

Ground 7A (with or without other grounds) – 1 month

Ground 7 or 7B (without Ground 7A or 14) – 3 months

Ground 8, 10 or 11 without at least 6 months rent unpaid at service – 6 months

Other Grounds – 6 months

The new Form 3 sets out all the periods as well as extra requirements and it will be sensible always to go through them consulting the Form. Proceedings must be issued within 12 months of service of the notice.

In Ground 8, 10 and 11 cases the key factor will be whether to wait for 6 months’ arrears to accrue (if they do) or issue at once. A belt and braces approach might be to issue a s8 Notice with 6 month period as soon as Ground 8 arises with a further notice if 6 months’ arrears accrue.

2.PD 55C

Reactivation

Most claims that have already been issued will need to be reactivated

Paragraph 1.3 distinguishes between:

1. a ‘stayed claim’ which is one brought ‘on or before 19 September 2020’ and expressly includes appeals from claims brought before that date

– such claims and appeals were of course stayed as a result of PD51Z and new CPR 55.29

And

2. a ‘new claim’ – being a claim brought after 19 September

Rules in respect of ‘stayed claims’

Paragraph 2.1 provides that ‘subject to paragraph 2.2 and unless the court directs otherwise’ stayed claims will not be ‘(a) listed; (b) relisted; (c) heard; or (d) referred to a judge under rule 55.15’ without a Reactivation Notice filed and served by either party.

Para 2.2 sets out exceptions to 2.1:

claims ‘brought on or after 3 August 2020’ or ‘in which a final order for possession has been made’.

Para 2.3 sets out what the reactivation notice must state, namely:

The Party wishes the claim to be ‘listed, relisted, heard or referred’

And (except in the case of an appeal) ‘what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants’

Claimants are put under no obligation to make any enquiries as to the effect of Covid on Defendants. It is likely there will be many reactivation notices stating that Claimants have no knowledge of the effect of covid on the Defendant. It will also mean that tenant advisers will be well advised to set out themselves in response to the reactivation notice the impact the Tenant says covid has had on them. This could cover not just possible reasons for rent arrears but issues finding other accommodation and the potentially more serious impact on them of eviction and homelessness.

By 2.4 in claims ‘based on arrears of rent’ (except appeals) the claimant must file and serve with the notice ‘an updated rent account for the previous two years’.

By 2.5 any trial date [not hearing date] set before 27 March will be vacated (‘unless the court orders otherwise‘) unless the appropriate reactivation measures have been carried out ‘not less than 42 days prior to the hearing date’

The parties have until 29 Jan 2021 to file the reactivation notice at which point the claim will be stayed. An application would be needed to lift the stay in the usual way but the PD makes it clear staying the claim in this way is not a sanction.

Paragraphs 3 and 4 – modifying Court handling of claims

Para 3.1 requires the Court to give the parties at least 21 days notice of hearings ‘listed or relisted in response to a reactivation notice’ but again with the saving ‘unless it directs otherwise’

Para 4.1 modifies CPR 55.5 by removing the requirement for the Court to list a newly issued claim within any particular period. It makes express reference to disapplying the requirement in 55.5 for the standard 8 week period between issue and hearing.

Para 5 deals with reactivated claims where case management directions were made before 20 September;

5.1 requires the party filing the reactivation notice to accompany it with a copy of the last directions made with ‘new dates for compliance’ to allow for the stay.

AND the party must file and serve with the Notice ‘additional or alternative directions’ including ‘proposing a new hearing date’ if required or a statement that no new directions are needed and the hearing date can be met.

They must also state in writing whether the case is suitable for video/audio link hearing

5.2 requires any party disagreeing to ‘file and serve a response within 14 days’.

Failure to comply with the requirements of 5.1 by 29 January 2021 will again result in a stay

Para 6 in all ‘new claims’ brought after 3 Aug 2020 a landlord must: bring 2 copies of a notice setting out their knowledge of the impact of covid-19 on the defendant and their dependents (again this may be nothing) having sent a copy to the defendant not less than 14 days before the hearing.

In claims to which the Pre-action Protocol for Possession Claims by Social Landlords applies, the claimant must also serve (and then bring two copies to the hearing) a notice stating the protocol has been complied with and set out how.

Form of Reactivation Notice

On 15 September forms of Reactivation Notice for both Claimant and Defendant were issued at https://www.gov.uk/government/publications/reactivation-notice-for-property-possession although their use is not mandatory. The Claimant’s version is unsurprising but at 4 gives detail on how post-stay prioritisation of possession cases will be managed.

It lists circumstances a Landlord may wish to rely on to gain ‘priority consideration’, namely: ‘significant’ anti-social behaviour, ‘extreme’ rent arrears (defined as ‘at least 12 months’ rent or (in the case of a private landlord) 9 months’ rent if that is at least 25% of the private landlord’s income’, squatters, illegal occupiers or persons unknown, domestic violence where possession of the property is important, fraud or deception, unlawful subletting, abandonment, non-occupation or death of the defendant, the property was allocated by an authority as temporary accommodation and is specifically needed for re-allocation as such.

The explanatory notes inform a Claimant that not only should they tell the court what they know of the impact of Covid-19 on the Defendant, they can also rely on any adverse financial consequences they have suffered from the pandemic.

In Summary

1. Stayed claims need a Reactivation Notice from either party before anything will start to happen again. The exceptions are claims brought after 3 August 2020 or where a final order has been made.

2. It must be filed at court and served on the other parties.

3. There is an official form, but it isn’t mandatory and the Notice needs only say

(a) ‘We’d like a listing’ and

(b) ‘This (if anything) is what we know about the impact of covid on the defendant and their dependants’. [b is not required for appeals]

4. If the claim is based on arrears the Notice must be accompanied by a 2 year rent account. [not required for Appeals]

5. The Court will give 21 days notice of a hearing listed following a reactivation notice.

6. The Court will not list new claims within any particular timeframe.

7. If a trial date was listed before 27 March 2020 it will be vacated and the case stayed unless the reactivation requirements are met not less than 42 days before the date of trial

8. Where case management directions have been made you must file with your Notice:

(i) a copy of the directions and suggested new dates for compliance

(ii) with either:

a) draft order setting out the new directions or

b) statement that existing directions can remain in place

(iii) a statement of whether the case is suitable for video/audio link (other parties can dispute this within 14 days)

9. Failure to comply with the requirements by 29 January 2021 will result in a stay.

10. In claims brought after 3 Aug 2020 the claimant must

(a) File with the claim a notice saying what they know of the effect of covid on the defendant and dependants

(b) Bring two copies of such a notice to the hearing and

(c) If the Social Landlord PAP applies bring two copies of a notice stating it has been complied with and giving details of compliance

Having served these on the defendant at least 14 days before the hearing