An update for Landlords: Possession claims to resume in August 2020
Sheila Valand | Partner
Possession claims will be resumed on Monday 24 August 2020 and the current stay will not be extended further.
Part 55C of the Civil Procedure Rules has been published and details of how claims are to proceed when the stay is lifted. The changes will be temporary and will last until 28 March 2021, subject to a review during that time. It splits claims into two parts, those which were issued before 3 August 2020 and those which are issued on or after 3 August 2020.
Claims issued before 3 August
This includes all claims that were issued by the Court on or after 28 March 2020 but where a final possession order was not be granted. These claims were automatically stayed.
The stay is not automatically lifted. Landlords will now have to serve a Reactivation Notice to progress the claim.
There is no prescribed form for the Reactivation Notice, however, the specific requirements are:
- Confirm whether the case it to be listed, relisted, heard or referred;
- Set out the Landlords knowledge as to what effect the Coronavirus pandemic has on the Tenant and their dependents;
- Where the claim is based on arrears of rent, the Landlord must provide an updated rent account for the previous two years or from the start date of the tenancy if less.
The Reactivation Notice should be filed with the Court and served upon the Tenant.
Providing the Reactivation Notice is valid, the Court will list the hearing giving the parties 21 days’ notice.
What if you fail to serve a Reactivation Notice?
If a Landlord fails to file and serve a Reactivation Notice or fails to comply with the requirement above before 29 January 2021, the claim will be automatically stayed.
Claims issued after 3 August 2020
On issuing possession claims after 3 August 2020, the Landlord must serve on the Tenant 14 days prior to the hearing and bring to the hearing two copies of the notice setting out the effect the Coronavirus pandemic has had on the Tenant and their dependents as far as the Landlord is aware.
Best practice would be to include the notice when issuing a claim to ensure it is served upon the Tenant.
Effect of the Coronavirus pandemic
For all possession claims, a Landlord will have to file a notice setting out the effect the Coronavirus pandemic has had on the Tenant and their dependents. There is no obligation on the Landlord to undertake any investigation and therefore it could be sufficient for the Landlord simply to write “no knowledge”. If the Landlord fails to provide a notice the case will be adjourned.
For Section 8 claims, the notice will have no effect on the Court granting a possession order on a mandatory ground providing the ground is satisfied. For Section 21 claims, provided the Landlord has complied with the procedural requirements, a Judge will have no choice but to grant a possession order.
The requirement to list a hearing within eight weeks of the claim form being issued under CPR 55 has been removed. The Court will list hearings as and when they see fit.
Many local County Courts will not have the ability to adhere to social distancing measures and furthermore Courts will be trying to catch up on the backlog of their previous cases and therefore possession claims could be further delay.
What can Landlords do to avoid delays?
Landlords who wish to recover possession, unless they are able to agree a settlement with the Tenant, will have to proceed with Court action. Further guidance is expected to be published by the Government in this regard.
Landlords using the Section 21 procedure may be able to avoid waiting for a Court hearing by using the paper-based accelerated possession procedure. Section 21 claims have become increasingly complex in recent years with technical failures leading to claims being dismissed.
Landlords are reminded that the current requirement is to provide 3 months’ notice when a Section 21 or Section 8 Notice is being served, until 30 September 2020. It is hoped that after this date the normal notice provisions will apply.
It is recommended that Landlords seek specialist advice at the outset as getting the process right the first time can save time and cost. We have a team of specialists who can advise you on your case and the best procedure for regaining possession of your property.
If you would like any further information then please contact us and we would be happy to discuss your case with you.