Possession Claims: Frequently Asked Questions

Following the numerous changes to the law and procedure surrounding possession proceedings, a set of commonly-asked questions has emerged in recent months, LPC Law has been asked these by judges, clients and other stakeholders. This write-up acts as a briefing document on the position as it stands on 7 May 2021.

Isn't there a stay on possession claims?

No - there has not been a stay since 20 September 2020. The stay which applied to most, but not all, possession proceedings was originally imposed by CPR PD 51Z (on 27 March 2020), and thereafter, r.55.29 (from 25 June 2020). The stay was lifted on 20 September 2020 and has not been in place, in any form, since then.

Does PD 51Z apply still?

No. It imposed an initial 90-day stay on most possession proceedings (the exceptions at that point being trespass claims, applications for interim possession orders and cases where agreed case management directions existed) and its effect was supplanted by r.55.29. The Practice Direction itself ceased to have effect on 30 October 2020, in any event.

Aren't all evictions banned at the moment?

No, but some are.
No person may attend at a dwelling-house to either deliver a notice of eviction or execute a writ/warrant of possession, unless an exception applies.
Said exceptions - for properties in England - are contained within Regulation 2 of the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 (as amended by the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021, which further extended the 'ban' beyond 31 March 2021). The 'ban' on evictions which are not excepted is in place until the end of 31 May 2021. The most pertinent exception, from the perspective of LPC Law’s stakeholders, is for substantial rent arrears – being at least 6 months’ worth of arrears.
For properties in Wales, Regulation 2 of the Public Health (Protection from Eviction) (No. 2) (Wales) (Coronavirus) Regulations 2021 contains the exceptions, which are slightly narrower than those that exist in England. The 'ban' is in place in Wales until the end of 30 June 2021.

Wasn't it 9 months' of rent (in England) at one point?

Yes - from 17 November 2020 until 11 January 2021, the 'substantial rent arrears' exception was defined as at least 9 months' rent, which had accrued prior by 23 March 2020 (i.e. 9 months' worth of pre-Covid-19 arrears) - Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020.
This is no longer relevant, in that currently the only evictions for which notice may be given, or which may be carried out, are those which fall within one of the exceptions within the currently-applicable Regulations (see previous answer).

Is there an exception for substantial rent arrears in Wales?

No - there has not been such an exception in Wales in any version of the legislation.

Are mortgage lenders allowed to make possession claims at present?

Yes; there is nothing whatsoever precluding mortgage lenders from issuing and pursuing possession proceedings. Since 1 April 2021, paragraph 7.3 of the Financial Conduct Authority's "Mortgages and Coronavirus: Tailored Support Guidance" has made clear that lenders may obtain possession orders and enforce them subject to any Government restrictions.
In other words, mortgage lenders may obtain a possession order now, and may take enforcement action once the law permits it (after 31 May 2021 in England; after 30 June 2021 in Wales).

Should the period of a possession order be extended until a date after the ban is lifted?

No. In the landlord-tenant context, for orders based on mandatory grounds, the court's power is still circumscribed by s89 of the Housing Act 1980 (2 weeks at most, or 6 weeks maximum if 'exceptional hardship' demonstrated by the tenant).
In the mortgage context, there are no additional jurisdictional bases for the court to interfere with the Claimant's entitlement to possession than there were pre-pandemic; the law remains the same.

Does any of this affect requirements regarding the Mortgage Pre-Action Protocol Checklist?

No - the obligation remains the same; for those claims to which the Checklist applies, under CPR PD 55A paragraph 5.5, the Claimant must bring 2 completed copies of Form N123 to the hearing.

Does the Mortgage Pre-Action Protocol apply to all mortgage-based possession claims?No - its full name is the "Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property". The Protocol itself states at paragraph 4.3 that it does not apply to 'Buy To Let' mortgages. It also self-evidently does not apply to non-arrears based claims, such as where the term has expired.

Do all possession claims need to be reactivated?

No. See PD 55C paragraph 1.4. Only stayed claims which were brought before 3 August 2020, and in which no final possession order had been made, required a reactivation notice.
Pursuant to PD 55C paragraphs 2.6 and 5.3, if there has been no reactivation notice filed by 4:00pm on 30 April 2021 for a stayed claim which required one in order for the matter to be progressed, then that claim is automatically stayed. An N244 Application Notice would now be required to lift the automatically-applied stay.

What is a Coronavirus knowledge notice?

See PD 55C paragraph 6.1(a)(ii): "A notice setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants" (hereinafter, called a 'Knowledge notice').

Is there a specific format for a Coronavirus 'Knowledge notice'?

No - it is a question of substance rather than form.
Paragraph 2.3(b) made it obligatory for a reactivation notice itself to contain the 'Knowledge notice' within it, for those claims which required a reactivation notice. Any wording can be used to set out what (if any) knowledge the Claimant has; if the Claimant has no knowledge, they need only say exactly that.
For claims brought on or after 3 August 2020 (i.e. those for which no reactivation notice is required), the Claimant must - until 30 July 2021, when the interim period ends - comply with paragraph 6.1 and 6.2 of PD 55C by bringing to the hearing 2 copies of the 'Knowledge notice', and serving a copy of the notice on the Defendant at least 14 days before the hearing.
For accelerated s21 claims, the 'Knowledge notice' needs to be filed with the Claim Form (paragraph 6.2).

Does the Claimant have an obligation to obtain knowledge?

No - there is no obligation on a Claimant to seek any more knowledge than they already have. Whilst the Reactivation Notice states, "If you have no knowledge you could consider taking reasonable steps to find out before using this Notice", there is nothing mandatory, either within that wording, or anywhere in the CPR, requiring the Claimant to seek-out knowledge.

What is the notice period required for s8 and s21 notices?

It depends on when the notice was/is served, and whether the property is in England or Wales.
Currently in England, until 31 May 2021 inclusive, the notice period for s8 notices is 6 months for most Grounds, with the most pertinent exception being where there are at least 6 months' rent arrears and the landlord is invoking Grounds 8, 10 and 11 in Schedule 2 Housing Act 1988 (as amended) - 4 weeks' notice is required before commencing proceedings.
Currently in Wales, until 30 June inclusive, 6 months' notice is required, except for Ground 7A (4 weeks for periodic/1 month if within fixed term), Ground 14 (forthwith) and 14A (2 weeks) - Coronavirus Act 2020 (Residential Tenancies: Extension of Period of Protection from Eviction) (Wales) Regulations 2021.
The notice period for a s21 notice is 6 months.

Are s21 possession claims exempt from the 'eviction ban'?

No, not even if they involve substantial rent arrears. The authority for this is Trinity House of Deptford Strond v Prescott & Anor [2021] EWHC 283 (QB).

Is the Government going to abolish s21?

They probably will bring forward draft legislation to do so, at some point during this Parliament, but unless and until they do so and such a Bill receives Royal Assent, it remains good law and a valid route to obtaining possession.

What are Review (R) and Substantive (S) Hearings?

A 2-stage route to obtaining possession, brought in by the previous Master of the Rolls, as the stay on possession proceedings was lifted in September 2020.
See the "Overall Arrangements for Possession Proceedings in England and Wales".
R dates are intended to encourage Defendants to engage early, obtain legal advice (whether from the duty advice scheme or otherwise) and advance settlement proposals. S Hearings are the hearing of the possession claim itself, at which the court may make a final order.
Most claims are undergoing the 2-stage R/S route, save for some accelerated s21 possession claims, which are being dealt with on paper, or being listed for S Hearing without an R date.
Feedback on the regime has been mixed.

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