We, amongst many other practitioners, have been bleating on recently (see here) about the ‘request’ by the Lord Chancellor made to High Court Enforcement Officers and County Court Bailiff not to undertake evictions either in certain areas affected by Tier 2 or 3 Covid 19 restrictions or during the current lock down period.

The general consensus has been that, whilst the reason for the ‘request’ was plainly in the interests of public health and therefore made sense, the manner of the change in policy, by request as distinct from by statutory instrument, had no basis in law and thus would not withstand scrutiny were it subjected to Judicial Review.

Accordingly, the Government has acted and today (17 November 2020) we see the implementation of the The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 and specifically section 2 thereof (see here).

So what do you need to know?

• Evictions will still not be undertaken until after 11 January 2021 save for in specific excepted circumstances.

• The Lord Chancellor’s ‘request’ letter of 5 November 2020 stated that exceptions to his, then, request for no evictions would include:

  • the removal of Squatters,

    or where possession orders were made on the grounds of

  • anti social behaviour,

  • domestic abuse,

  • fraud or

  • where the tenant had died.

• The new Regulations confirm the above and add in a “substantial arrears” exception too.

What amounts to substantial Arrears ?

There are limitations in relation to what amounts to “substantial arrears” as follows:-

• Section 2(4)(a) requires that the amount of unpaid rent arrears outstanding at the date on which the order for possession is granted is at least an amount equivalent to 9 months’ rent; and

• Section 2(4)(b) states that for the purposes of the 9 months referred to above, any unpaid rent arrears accrued after 23rd March 2020 must be disregarded.

So, notwithstanding that over seven months have passed since the start of the first lockdown, any arrears accrued during the period since 25 March 2020 cannot be counted as any part of the required 9 months arrears qualifying for this exception. Those arrears, all 9 months of them, must all predate the end of March 2020.

The reality is of course that many of possession actions based upon rent arrears and currently subject to a possession order will almost certainly relate to arrears that predate March 2020. However, that order will only be enforceable prior to 11 January 2020 if those arrears are sufficiently high to qualify for the 9 month exception.

As always, if you need clarification on these new rules or assistance with any tenancy issue then we are here to help you/your clients so do feel free to contact us..

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