From today Courts will start to deal with residential evictions again, though there are new rules that must be followed. In addition, and since we last reported, most notices to quit or possession notices must now give 6 months' notice and will remain valid for 10 months following service. What happens to possession proceedings now that the ban has been lifted? Landlords will need to follow the new CPR Practice Direction 55C.
- To continue a frozen claim that was issued before 3 August 2020, including accelerated possession claims:
- They will need to file and serve a 'Reactivation Notice' confirming that they wish it to be progressed. Any possession claim with a hearing already listed requires the notice to be filed and served at least 42 days before the hearing.
- Except in proceedings relating to an appeal, the 'Reactivation Notice' must also set out what is known about the effect of the Coronavirus pandemic on the Defendant and their dependents.
- For new claims (brought on or after 23 August 2020) and for stayed claims brought on or after 3 August 2020:
- Landlords must serve a notice on the Defendant setting out what knowledge he/she has as to the effect of the Coronavirus pandemic on the Defendant and their Defendants not less than 14 days before the possession hearing.
- They must bring two copies of that notice to the possession hearing.
- For new accelerated possession claims (brought on or after 23 August 2020) and for stayed claims brought on or after 3 August 2020:
- The Landlord must file with the Claim form for service with it a notice setting out what knowledge he or she has as to the effect of the Coronavirus pandemic on the Defendant and their dependents.
How are the Courts going to prioritise possession claims? New and existing possession cases that will be given priority are (not an exhaustive list):
- Cases with allegations of anti-social behaviour;
- Cases with extreme alleged rent arrears accrued which is classed as arrears equal to at least (i) 12 months’ rent or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
- Cases involving alleged squatters, illegal occupiers or persons unknown;
- Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted);
- Cases with allegations of fraud or deception;
- Cases with allegations of unlawful subletting;
- Cases with allegations of abandonment of the property, non-occupation or death of defendant;
- Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.
In addition, 200 more Deputy District Judges and Property Tribunal Judges have been drafted in to assist with possession hearings as required. What else has changed? The possession hearing process will be different. Except in accelerated possession claims there will now be an initial review date at least 21 days prior to the substantive hearing. Claimants must make themselves available on the review date to discuss the possession with the Defendant or their advisor by telephone and the Court will conduct a five-minute review at the end of the day and give further directions or approve consent orders if settlement has been reached. Any substantive possession hearings that follow (at least 28 days after the review date) will last for 15 minutes, with gaps between, and there will no longer be block listings. Accelerated possession claims will still generally be dealt with on paper, with claims being referred to Judges for consideration at a 'manageable frequency'. Judges will also be able to schedule a review date so that a Defendant can receive duty scheme advice or to allow for mediation or independent facilitated negotiation under a pilot scheme that has been proposed. In addition, either party or the Court itself may 'Covid-19 Case Mark' a file at any stage to highlight cases where the pandemic has caused particular difficulty. What are the rules about possession notices now? As predicted, the government has made changes to the length of possession notices which will remain in force until at least 31 March 2021. The changes are: Section 21 notices
- Notices given on or after 29 August 2020 must give six months' notice;
- Proceedings based on Section 21 notices may be issued up to ten months from the date of service of the notice, rather than the six months previously in place.
The changes to notices under s.8 of the Housing Act 1988 are more complicated and vary depending on the ground(s) specified in the notice.
Rent Arrears The notice period under grounds 8, 10 and 11 is dependent on the length of time that the arrears have existed.
- Six months' plus – four weeks;
- Less than six months – six months
Grounds 7A and 14 respectively concern tenants being convicted of serious offences or anti-social behaviour, or causing nuisance or annoyance.
- Ground 7A – one month;
- Ground 14 - No notice period (proceedings can be issued from the date of service of the notice)
- Reliance on Ground 7 (tenancies devolved following the death of a former tenant) and 7B (where the tenant is in breach of immigration rules and has not been permitted a right to rent) will result in a notice period of three months.
- Reliance on Ground 14A (where a partner has left as a result of domestic violence and is unlikely to return), Ground 14ZA (where a tenant has been convicted of an indictable offence during a riot) and Ground 17 (where the landlord was induced to grant the tenancy as a result of a false statement) will result in a notice period of two weeks.
- Reliance on the other grounds, not referred to above requires a six month notice period.
If you have a question about the length of notice required for another type of tenancy, or about the changes to the residential possession regime generally then please do not hesitate to contact us. Sarah Heatley, Associate at Forsters, Property Litigation