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Residential Possession Proceedings – Practical Considerations

This note is not intended to substitute legal advice from your instructed lawyer. You should always consult with your lawyer directly regarding any specific queries you may have. We must repeat that we are limited to providing legal advice to you in respect of the property and or other matters upon which we are instructed by you.

Your Best Interests

In accordance with our professional obligations as a law firm regulated by the Solicitors Regulation Authority, we must always act in the best interests of our clients. In striving to achieve this, we have prepared this note for consideration of the core issues relating to obtaining vacant possession of your residential property in light of the recent coronavirus (Covid-19) outbreak.

New proposed possession legislation

On the 18th March 2020, the Government announced emergency legislation to do the following:

  • Stop any new possession claims (social and private tenancies) being issued at court for the next three months
  • Introduce a new pre-action protocol for possession claims, to apply after the three months which will apply to private as well as social tenancies to strengthen its remit and to “support the necessary engagement between landlords and tenants to resolve disputes and landlords will have to reach out to tenants to understand the financial position they are in.”

The Coronavirus Act 2020 (the Act) received royal assent on the 25th March 2020 and grants the government emergency powers to handle the 2020 coronavirus pandemic.

Section 81 of the Act titled “protection from eviction” refers readers to Schedule 29. The effect of the provisions in Schedule 29 is to extend the notice period before which possession proceedings may be commenced to three months for all tenancies with statutory protection no matter what the period would usually have been. This notice period may be extended up to six months by the Minister.

The Master of the Rolls and the Lord Chancellor have signed Practice Direction 51Z (PD) in relation to possession proceedings during the Coronavirus pandemic. It follows the Coronavirus Act 2020 and complements the provisions therein to prevent imminent evictions and delay possession proceedings.

The PD is effective from the 27th March 2020.

The main changes effected by this PD are:

  • All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from 27th March 2020.
  • Claims for injunctive relief are not subject to the stay set out in paragraph 2 of the PD.

The PD ceases to have effect on 30th October 2020.

What about the notice that I have already served on my tenant before enactment of the new legalisation?

Notices issued before the commencement date will remain valid as a basis for possession proceedings. Upon expiry of the notice you may apply to court for a possession order. The court will issue your claim but it will immediately be stayed (paused) until the restrictions are lifted.

What happens if my tenant stops paying rent?

There is no payment break or holiday for renters. Your tenant can only pause rent payments if you as landlord agree.

How will I pay my buy to let mortgage if the tenants are not paying rent?

Recognising the additional pressures the impact of COVID-19 may put on landlords, the government has confirmed that the 3 month mortgage payment holiday announced yesterday will be extended to landlords whose tenants are experiencing financial difficulties due to coronavirus.

The government also announced that those who have benefited from a government-backed Help to Buy equity loan will be offered interest payment holidays if they are struggling to pay due to coronavirus.

What happens when the ban on evictions is lifted?

At the end of the three months, landlords and tenants will be expected to work together to establish repayment plans, taking into account tenant’s individual circumstances.

It has further been announced that “The government will also issue guidance which asks landlords to show compassion and to allow tenants who are affected by this to remain in their homes wherever possible”.

What about my existing possession claim?

The announcement regarding suspension of all current actions means that cases progressing through the courts or about to be listed will be suspended. Landlords will therefore not be able to get a possession order against a tenant for the next 90 days (at least) regardless of when the relevant notice was served or when proceedings were issued.

This suspension of housing possessions action will initially last for 90 days, but this can be extended, if needed. This measure will protect all private and social renters, as well as those with mortgages and those with licenses covered by the Protection from Eviction Act 1977. This will apply to both England and Wales.

Housing will always be a contentious area especially, in times of crisis. The economic impact of COVID-19 will further compound this situation both in terms of the ability of tenants to pay rent and or secure other cheaper private rental accommodation and in extremes the ability of emergency housing to be provided by the local council.