The current Court suspension on possession claims and enforcement has been widely reported, both in the press and by KDL Law in a series of Legal Updates, since the outbreak of the COVID-19 pandemic.  Landlords will be pleased to hear that the suspension is not going to be further extended and that it is due to, and will, be lifted on 23 August 2020.

The Court Rules are due to be amended to make provision for how such claims and enforcement proceedings are to be dealt with, once the stay is lifted.  The rules apply to possession claims for most types of tenancies, including assured, assured shorthold and Rent Act tenants, but not claims against trespassers.

How will proceedings be dealt with after 23 August 2020?

A new Practice Direction 55C (PD 55C) will be inserted into the Civil Procedure Rules (CPR) with effect from 23 August 2020.  PD 55C will be in force for a temporary period, from 23 August 2020 until 28 March 2021. PD 55C makes a distinction between ‘stayed claims’, e.g. claims brought on or before 22 August 2020 and so will be subject to the current suspension, and ‘new claims’, e.g. any claims brought after 22 August 2020. Some of the new rules apply only to stayed claims, some apply only to new claims, some apply to both, and some only apply to accelerated possession claims.

PD 55C also temporarily modifies the existing CPR Rules, to lift the current 8 week aimed timescale for listing possession hearings, giving the Courts some leeway in listing the back-log of cases since the stay was imposed in March 2020.

Stayed claims

• No claims will be listed, re-listed, heard or referred to a judge until one party files with the Court and serves a ‘re-activation notice’;

• The re-activation notice must confirm that the party wishes for the claim to be listed, re-listed, heard or referred to a judge AND (except in relation to appeals) set out what knowledge the landlord has of the effect of the coronavirus pandemic on the tenant and their dependents;

• Where case management directions had been made prior to 23 August 2020, the party filing the re-activation notice must also file the latest directions order together with new dates for compliance with the directions, either a draft order setting out any additional or alternative directions required or state that no directions are required and confirm if any existing hearing date can be met. They must also state whether the case is suitable for a hearing by video or audio link. If the other party/s do not agree, they must respond within 14 days;

• Where the claim is in relation to rent arrears, the landlord must also include with the re-activation notice a rent statement for the previous two years (except in the case of appeals);

• If no re-activation notice is filed by 4:00pm on 29 January 2021, the claim is automatically (further) stayed and a formal application must be made for the claim to then be re-activated;

• Unless the Court orders otherwise, any claim listed for trial prior to 27 March 2021 will be vacated and the claim stayed, unless the landlord complies with the above requirements 42 days prior to the trial date;

• There is no requirement for a re-activation notice where the claim was commenced on or after 03 August 2020 OR where a final order for possession has been made, so where the enforcement (eviction) has been stayed.

New claims and stayed claims brought on or after 03 August 2020

• The landlord must bring to the hearing two copies of a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the tenant and their dependents.

New accelerated claims and stayed accelerated claims brought on or after 03 August 2020

• The landlord must file with the claim form for service a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the tenant and their dependents.

What this means

(Further) Delays - it was of course anticipated that the wider impact of the pandemic, including temporary Court closures and reduced staffing to allow for social distancing, as well as the suspension over the last 4 months, will have caused a colossal back-log of possession claims and evictions waiting to be processed. The lifting of the 8 week timescale to list possession claims is designed to ease that burden, with bulk possession listings no doubt becoming a thing of the past, certainly in the short-term, whilst the nation continues to observe social distancing.  Those dealing with possession claims will of course be aware that the 8 week timescale is rarely met in any event, but landlords should expect even longer delays come 23 August 2020.

Disclosing information - landlords will need to be armed with the relevant information known about the tenant’s circumstances, e.g. are they known to have been unwell/shielding, on furlough or in some other way financially affected by the pandemic, in readiness to re-activate their claims come 23 August 2020 or to bring any new claims come 03 August 2020.  PD 55C does not elaborate on what information is expected to be provided, but if the landlord or its agents know anything about how the tenant has been affected by COVID-19, they should disclose it.  At present there is no prescribed form of re-activation notice, provided that it is in writing and contains the information required by PD 55C.

No duty to seek out information - interestingly, PD 55C has imposed no duty on landlord’s to actively seek out information about their tenants. This is despite early indications that the pre-action protocol which applies to rent possession claims brought by social landlords would be extended to the private sector, which would impose a duty on landlords to discuss their personal circumstances where they have fallen into arrears.  This extension never came to fruition.

Evictions - there is seemingly no requirement for a re-activation notice where it is an eviction that has been stayed.  However, the Courts are unlikely to process stayed warrants of their own accord (or in any case, promptly), and it would be sensible for landlords to at least write to the Court come 23 August 2020 requesting that an eviction now be listed, or simply file a re-activation notice to cover all bases.

In the next few weeks, we will be contacting all our clients who currently have stayed possession claims with the Courts so that we are ready to submit re-activation notices immediately come 23 August 2020, and those possession claims can re-commence as quickly as possible once the current stay is lifted.

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

If you have received this update in error or wish to unsubscribe from future updates then please email us at info@kdllaw.com.