Lifting the stay on possession proceedings – an important update for landlords

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New temporary provisions relating to rent possession claims will come into force when the stay on possession proceedings, imposed as a result of coronavirus, is lifted on 24 August 2020. The provisions will be included in a new Court Practice Direction 55C.

Although the provisions, which are likely to remain in place until 28 March 2021, are yet to be finalised, they will include:

  • A requirement that the landlord informs the Court and the defendant that they wish to resume the stayed possession proceedings by serving a “reactivation notice”;
  • A requirement that the landlord inform the Court of the tenant’s circumstances either in the reactivation notice or before the Court hearing. The information will include the effect of the pandemic on the tenant and the tenant’s family, as well as in relation to the benefits situation, disability and vulnerability;
  • A requirement to provide a full rental payment history to the Court prior to the hearing;
  • Provisions to allow the Court to space out hearings to avoid “bunching” and, presumably, crowded Court waiting rooms which could result in an increased risk of infection. These provisions will allow the Court more time between the issue of the claim form and the hearing which, under current provisions, should not be more than 8 weeks.

It would appear that whilst possession claims will begin to return to normal on 24 August, landlords can expect significant delays in getting matters heard and that some may be caught out because they do not appreciate the need to file and serve a reactivation notice or information relating to the tenant’s circumstances.

The requirement for the landlord to provide information is likely to extend to mandatory possession orders under Ground 8 and s21. However, it’s difficult to see how the Court will use this information, other than to give the maximum 42 days for the tenant to vacate, as there is no discretion in these cases but to make an outright possession order. Landlords will want to ensure that they make it clear to the Court that rent arrears are not coronavirus-related in circumstances where this is the case.

Finally, the Court will expect evidence that the landlord has engaged with the tenant to resolve the situation before issuing proceedings. Whilst social landlords are used to this sort of engagement and to following the Pre-action Protocol for possession claims, they are probably less likely to be familiar with submitting written evidence of this to the Court prior to the hearing. For private landlords, the idea of negotiation with the tenant prior to issuing proceedings may be new but this will become an important part of the new landscape at least until the spring of next year.