With Boris Johnson announcing last Monday that the country would be entering into a third period of national lockdown with effect from 06 January 2021, the inevitable question has been asked about the status of possession claims and evictions during this time.

Whilst the suspension on possession actions was lifted on 20 September 2020 and that has remained the case to date such that new and existing possession claims can progress through the Court system, the story has been somewhat different for evictions. Although evictions were initially reinstated with effect from 20 September 2020, this was quickly halted a month later following the introduction of the Tier system of lockdown in England, and then during the second national lockdown which commenced on 05 November 2020. From then, legislation was passed such that no evictions could take place until after the ‘winter truce’ on 11 January 2021, save in the case of some limited exceptions (see here and here).

With effect from 11 January 2021 yet more new Regulations have been passed limiting the evictions that can take place during lockdown.

The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 are now in place until 21 February 2021 and ban any evictions from taking place until after that date, save in limited circumstances.

The exceptions mirror those made under the previous Regulations, namely where the claims relates to :-

• Illegal trespass or squatting by persons unknown;

• Nuisance or antisocial behaviour;

• Domestic abuse;

• The tenancy obtained by fraud or deception; and

• Some cases following the death of the tenant; and

• Importantly, “substantial rent arrears”.

The previous Regulations defined “substantial rent arrears” as at least 9 months outstanding rent, with any arrears accrued after 23 March 2020 disregarded. However, under the new Regulations, “substantial rent arrears” is defined as at least 6 months’ rent, with no restriction on the arrears which can be taken in account when calculating the arrears, e.g. the 6 months arrears could have accrued at any time prior to, or even after, the first lockdown on 23 March 2020.

For the “substantial rent arrears” exception to apply, the order for possession must have been made on rent arrears grounds (so in the case of assured or assured shorthold tenancies, Grounds 8, 10 or 11 to Schedule 2 of the Housing Act 1988). The exception will not therefore assist landlords whose possession orders were made on the no-fault ground for possessions set out in Section 21 of the Housing Act 1988, but who are nonetheless owed substantial rent arrears by their tenant(s).

An extended ban on evictions was always going to be inevitable as the country enters into a further period of national lockdown, however this will no doubt come as yet another blow to residential landlords, some of whom will have been waiting months, even over year, for an eviction following the first ban back in March 2020. Whilst the widening of the “substantial rent arrears” exception may assist landlords owed at least 6 months’ rent where possession claims were granted on rent arrears grounds, we suspect that the reality is such that we will see few evictions carried out between now and 21 February 2021, given the vast backlog of cases that the Courts are no doubt dealing with since the suspension on evictions was first imposed almost 10 months ago now.

Of course, the inevitable question will be asked again in the event that the current lockdown is extended as mooted by many already, and we will continue to report on updates as and when they happen.

If you have any queries on possession claims or evictions, please do get in touch with a member of the team on 01435 897297 or info@kdllaw.com.

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