Following a stay which has lasted 6 months, the courts are to resume hearing possession claims from 21 September 2020. This Update provides an overview on the procedural changes, the changes to required notice periods, and the manner in which possession claims shall begin to proceed.
Prioritisation of work
160 designated court staff and 200 additional Deputy District (and Property Tribunal) Judges have been assembled to handle the additional work.
The Master of the Rolls has issued a statement dated 17 September 2020, accompanied by 2 documents – a Guidance Note for Civil Judges as regards prioritisation of cases, plus ‘Possession Proceedings – Overall Arrangements’.
The court will prioritise cases involving anti-social behaviour, squatters, domestic abuse or fraud by tenants, as well as those where there are very high rent arrears of at least 6 months. Cases with at least 12 months’ rent arrears, or 9 months’ worth of arrears which amounts to over 25% of a private landlord’s total income, will take priority. Claims which were issued prior to the stay imposed by CPR 51Z and CPR 55.29 also take priority, subject to the foregoing.
Covid-19 Case Marking
At any point in the proceedings, the court file may be Case Marked as being a direct consequence of Covid-19 (or so claimed). Parties may request this, or judges may direct this. This is intended as a signal to the courts and to the parties, to consider settlement suitability, and for the Claimant to pay heed to any of its internal policies, which require that special consideration be given to such cases.
Format of proceedings
Firstly, a 5-minute Review (‘R’) date will be listed; usually, at the R hearing, the Substantive (‘S’) hearing date will be fixed for a date at least 28 days thereafter. 14 days before the R date, the Claimant is required to provide the Court with an e-bundle, confirmation that it has been filed and served, and confirm availability to discuss the case (by telephone will suffice) with the Defendant or Duty Adviser. If there is no resolution during the R hearing, the case shall proceed to an S hearing 4 weeks later, at which all parties are expected to attend.
Some additional details are:
- Courts are no longer obliged to list a hearing within 8 weeks of the issue of the claim. Courts will list up to roughly 3 months ahead.
- Each day’s listing will, where possible, feature grouped cases of the same type of Claimant – mortgage lenders, private landlords, social landlords, etc
- There are no planned changes to the Mortgage Pre-Action Protocol Checklist (Form N123)
- Accelerated possession claims will be referred to judge’s ‘at manageable frequency’. Those issued before 3 August 2020 will require a Reactivation Notice, and all such claims may be listed for ‘S’ hearings thereafter
- Notice of eviction (of at least 14 days) is now required in both the High Court and the County Court
- Courts will continue to accommodate appeals, applications to suspend warrants for possession, to set aside possession orders or to stay enforcement as usual
The expectation is that S hearings shall be listed for 15 minutes (not in block lists) and shall take place in person at courts which can accommodate social distancing, unless the parties agree to a remote hearing.
Mortgage possession proceedings
As regards mortgage possession proceedings, the Financial Conduct Authority has, on 14 September 2020, published finalised additional guidance for mortgage lenders which applies from 16 September 2020 onwards. This is intended to address borrowers who have taken payment deferrals (colloquially known as ‘mortgage holidays’), as well as those whose finances are affected by the Coronavirus pandemic after 31 October 2020. Until 31 October 2020, customers are allowed to request payment deferrals of a maximum 6-month duration. Lenders are expected to pro-actively engage with the borrowers prior to the end of the deferral period, and are encouraged to consider additional forbearance options for customers who have benefited from 2 such payment deferrals already. Possession action may continue or commence after 31 October 2020. Possession is to be seen as a solution, ‘after all other reasonable attempts to resolve the position have failed’.
Landlord & Tenant Proceedings
Turning to Landlord and Tenant law, for s21 and s8 notices served between 26 March 2020 and 28 August 2020, a 3-month notice period was necessary. From 29 August, the requirements of extended notice periods apply. For notices which are served during the period from 29 August 2020 to ‘at least’ 31 March 2021, the vast majority will require a notice period of 6 months. Please refer to the guidance published by the Ministry of Housing, Communities and Local Government here: https://www.gov.uk/government/publications/understanding-the-possession-action-process-guidance-for-landlords-and-tenants
A 6-month notice period is required:
- If there are less than 6 months of rent arrears; and
- For all Section 21 notices (which will themselves be valid for 10 months)
A minimum notice period of 4 weeks is required:
- Where there are at least 6 months of rent arrears;
- For cases concerning anti-social behaviour;
- For cases concerning domestic abuse; and
- For cases involving fraud
Reactivating Stayed Possession Claims
For all possession claims, under CPR PD 55C, a reactivation notice is required to be filed and served for all possession proceedings (except those wherein a final possession order had already been made) which were issued before 3 August 2020. HMCTS has published templates for such notices – one for a Claimant and one for a Defendant – here: https://www.gov.uk/government/publications/reactivation-notice-for-property-possession
There is at least 21 days’ notice required for hearings listed in response to a Reactivation Notice.
Notably, the first section of the Claimant’s notice asks for the knowledge which the Claimant has as to the impact of the pandemic on the Defendant/their dependants. The notice acknowledges that no such knowledge may be held by the Claimant, and suggests that the Claimant ‘consider taking reasonable steps to find out’ before using the notice. Since PD 55C does not require the taking of any such steps, this can rise only to the level of mere suggestion, rather than a binding obligation.
Claims issued between 3 August 2020 and 19 September 2020 will be subject to the stay on possession claims pursuant to CPR 55.29, but are not susceptible to the requirements for a reactivation notice.
Thereafter, once a stayed claim is reactivated, or a claim brought between 3 August 2020 and 19 September 2020 is no longer stayed, the court will list a review (‘R’) hearing, at least 4 weeks prior to a substantive (‘S’) hearing.
‘Coronavirus’ Notices and more
For claims brought from 3 August 2020 onwards, there is an additional requirement upon landlords to provide the court with information on how tenants and their dependants have been affected by the pandemic. Where such information has not been provided, judges have the power to adjourn proceedings for this information to be provided.
The necessary notices are:
- In claims to which the Pre-Action Protocol for Possession Claims by Social Landlords applies, the Claimant must, at least 14 days prior to the hearing, serve a notice on the tenant confirming that they have complied with the Protocol, and how they have done so; and
- In all claims, a notice setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants (‘Coronavirus notice’)
2 copies of each notice must be brought to the hearing.
For accelerated possession claims based on s21 notices, the ‘Coronavirus notice’ must be filed together with the claim form.
It has been further confirmed by the Communities Secretary that:
- Evictions, which are scheduled to recommence from 6 October 2020, shall not be enforced in areas subject to local lockdowns; and
- There will be a truce on enforcement of possession orders over Christmas.
In conclusion, following months of consultation with stakeholders, there is a plan which shall begin to be implemented from 21 September 2020, for the resumption of possession proceedings. It is anticipated that the progress of any given claim through the courts shall be protracted. This is due to various factors, including the introduction of R and S dates, the pent-up demand for hearings, the fact that the court is not required to list a hearing within 8 weeks of the claim’s being issued, the fact that no possession claims will be block-listed and the elongated notice period requirements.
The interim period set out within CPR PD 55C ends on 28 March 2021; until then, the roadmap for resuming possession claims commences as an untested experiment. Perhaps one of the few certainties amongst the procedural and legal changes is that all of the above is subject to change.