As examined in our previous blog post, the Coronavirus Act 2020 and Practice Direction 51Z of the Civil Procedure Rules came in to force at the end of March 2020 and has had serious consequences for landlords and landowners of both residential and commercial premises. For further information on the previous regulations, you can read about it on our previous blog post, which can be found here.
Notice Periods
The changes mean that until 30 September 2020, any landlord wishing to serve a Notice Seeking Possession in England, must give a minimum of three months’ notice to the tenant. This notice period is applicable irrespective of the grounds being used to obtain possession.
As Housing has been devolved to the Senedd Cymru, the rules are different in Wales and have again been updated in light of the Coronavirus. For Landlords serving notice on their tenants on any ground between 27 March 2020 and 23 July 2020 three months’ notice was required. For Landlords wishing to serve a notice seeking possession on their tenants, on any ground apart from those involving anti-social behaviour, between 24 July 2020 and 30 September 2020 a minimum of six months’ notice is required.
Proceedings
If possession proceedings in England and Wales have already commenced or have been sent to the Court to be issued, these proceedings would have been automatically stayed – effectively paused – until 23 August 2020.
The Master of the Rolls and the Lord Chancellor have provided clarification that possession proceedings can still be issued at court and as to how the Practice Direction is to be enforced. The government have clarified that the pause on proceedings does not apply to the following:
- Applications for injunctions;
- Where it is concerning “persons unknown” trespassing;
- Where a Claimant is seeking an interim possession order as they have the right to immediate possession due to unlawful occupation where the application for possession is made within 28 days of the Claimant becoming aware of the occupation; and
- Applications where case management directions can be agreed between the Parties
For all other types of possession claims in order for the existing claim to progress certain steps are required to be carried out under Practice Direction 55C. This Practice Direction comes in to force on 23 August 2020 and currently expires on 23 March 2021. The new steps that must be carried out include:
- Either Party may file a “Reactivation Notice” at Court, this should state that they wish for the claim to proceed. This Notice has to include confirmation that the Party filing it want a hearing to be listed, referred, heard of relisted. A copy of this Notice should also be served on the other Party.
- If neither of the parties write to the Court by 29 January 2021 and no Reactivation Notice is filed, the claim will be automatically stayed.
- When filing a Reactivation Notice, where case management directions were made before 23 August 2020, the Party filing this must also file it with the last Directions made by the Court with proposed new dates together with a draft order setting out additional or alternative directions (including proposing a new hearing date) or a statement in writing confirming that no new directions are required and that an existing hearing date can be met and a statement as to whether the matter is suitable for a video or audio link.
- If the other party does not agree with what is included with the Reactivation Notice, a response must be filed within 14 days of service of the Reactivation Notice
Where a claim was issued on or after 3 August 2020, there is no requirement to file and serve a Reactivation Notice. However, the Practice Direction requires compliance with paragraphs 6.1 and 6.2 which requires that:
- the Claimant, must take to the hearing two copies of any notices setting out what knowledge they have as to the effect of the Coronavirus pandemic on the Defendant and their dependants. This must also be served on the other side no less than 14 days prior to the hearing.
- The Claimant must also Include with the Claim Form a notice setting out what knowledge they have as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
Therefore, if the relevant period of notice given to the tenants has expired and a possession order is still required, we would advise landlords and landowners to seek advice to begin preparing proceedings to be issued at court now. As can be seen from the above, the obligations Landlords now have to comply with are onerous and failure to comply with these obligations could result in an unsuccessful claim.
Given that, this area of law is constantly evolving and the Coronavirus Pandemic appears to be far from over and there is scope for these dates to be extended further.
Whilst seeking possession from a tenant can in theory seem a simple process, landlord and tenant law is complex and whether a claim for possession is successful can hinge on the subtle details. What could appear to be a minor issue could mean that a claim is unsuccessful and could leave a Claimant open to a costs order against them.
Get in touch…
Here at Harding Evans, we understand the pressures and uncertainties that landlords will be facing to ensure that these new regulations are adhered to.
If you have any questions or concerns, please contact our Landlord and Tenant Team and Commercial Property Department by emailing courtc@hevans.com or by calling us on 01633 244233 and we can provide specific advice based on your individual circumstances.
