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By Rosemary Keczkes, chair of the Law Society’s housing law committee and Angus King, a member of the housing law committee
On 21 August, the government announced there will be a further extension to the stay on possession claims to 20 September 2020. As a result, the stay applies to all possession claims except with the limited exception of trespassers or the other exceptions set out in Practice Direction 51Z.
This announcement is in line with the government’s previous stance that tenants affected by coronavirus will continue to be protected, and this, together with a new requirement that landlords will now need to provide tenants with six-months’ notice until at least March 2021.
Cases involving domestic abuse or anti-social behaviour will be exempted from the new six-month notice requirement.
This is the second extension since the stay was first imposed on 27 March 2020. The last stay was due to end on 23 August, and in anticipation of this the courts had already issued practice directions clarifying the new possession processes.
The new procedure requires that any party wishing to progress a case would have to serve a “reactivation notice”, confirming their wish to proceed and setting out certain information, including the effect that coronavirus has had on the household.
Failure to serve such a notice by 29 January 2021 would lead to an indefinite adjournment of the case, which could only be lifted by a further application. The procedure applies to all cases and those where a final order has been made.
The countdown begins
Possession claims and evictions will now recommence after 20 September 2020, for all those who have had notices served since March. The mandatory grounds of Section 21 and Section 8 will still apply, which means that private tenants can be evicted merely by the service of notice that complies with procedural requirements and without a hearing, and housing association tenants can be evicted if they have more than eight weeks arrears at the date of the possession hearing, irrespective of the reason for the arrears.
Public health restrictions, however, mean that the old practice of listing 30 to 40 cases in a day is no longer possible, and when claims recommence, they are likely to be in a radically different form than before. What this form will be is as yet unclear, as the working group set up by the Master of the Rolls is yet to officially publish its recommendations.
While these measures will stop all possession actions, there are concerns by landlords that there is a blanket approach covering all breaches of tenancy, some of which are non Covid-related.
The six-month extension period will also cause problems, as there will likely be a rush of notices before the extension begins and under current rules, while Section 21s are invalid if no proceedings are issued before the six-month expiration date.
This means that unless the rules are amended, no Section 21s served after 1 November will be valid.
A broader view
The interests of landlords and tenants needs to be balanced, and a longer-term solution found, rather than repeated short extensions to staying possession actions, which will cause confusion over service of valid notices and existing Practice Directions which will need to be revised and brought up to date
For those tenants who are facing court actions, a further four-week extension is unlikely to have a significant impact and the threat of homelessness will put pressure on local authorities to find temporary accommodation and to provide homelessness prevention services to those at risk.
The local authorities and services offered to those at risk of homelessness are already under huge strain and this will only compound their paucity.
While it is hoped that landlords and tenants have tried to reach an arrangement over rent arrears, there will be an increasing backlog of claims that the court will need to clear, and it is not clear whether the ‘Nightingale courts’ will assist with backlog actions.