27/08/2020

Possession claims, present and predicted.

A round up of where we are on possession claims, notices, etc. and then what we will need to know for the future. This post is, of course, a hostage to fortune. The present moment stuff is right, but if the Govt goes the high risk route of retrospective effect for future legislation, the present stuff may become retrospectively wrong now. Which is a bad sci-fi film plot, not a sound basis for housing law.

This is for England. Wales have already introduced 6 month notice periods, but I’m frankly having trouble keeping up with the detail and issues in more than one jurisdiction at a time right now.

Notice periods – currently, the notice period for Housing Act 1985 and Housing Act 1988 (assured and assured shorthold) notices seeking possession is 3 months. That has been the case for all notices served on or after 26 March 2020, and remains the case until further notice.

Notices which have an expired notice period can be relied upon in issuing a possession claim. The stay imposed by PD51Z and then subsequently CPR 55.29 (now extended to 20 September 2020) did not and does not prevent possession claims being issued.

Indeed, as the six month from service limit on validity on section 21(1) notices was not varied, a possession claim would have to have been or will have to be issued on any two month notices served before 26 March 2020, but expiring after 26 March. Any three month s.21 notices served after 26 March 2020 will effectively have a three month window for a possession claim to be issued.

What has to be done on pre-existing stayed claims, or claims issued during the stay?

Well Practice Direction 55C has quietly been amended to read

This practice direction is made under rule 55.A1 and provides for temporary modification of Part 55 during the period beginning with 20 September 2020 (the end of the stay imposed by rule 55.29) and ending on 28 March 2021 (“the interim period”).

So, the introduction date has been amended from 23 August 2020 to 20 September 2020 to account for the extended stay. However, nothing else has been amended. So (as set out here):

For claims that pre-dated the stay, or that were issued before 3 August 2020, a reactivation notice is required, together with what is know of the impact of coronavirus on the defendant’s household (and maybe proposed amended directions, if previous directions had been given pre-stay)

For claims issued on or after 3 August 2020, the claimant must serve a notice setting out what is know of the impact of coronavirus on the defendant and their household at least 14 days prior to any hearing, and bring two copies to the hearing (and for social landlords serve 14 days before and bring two copies of a notice setting out compliance with the pre-action protocol).

For accelerated possession procedure claims issued on or after 3 August 2020, the claim must include a notice setting out what knowledge the claimant has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

Yes, I know. How can a practice direction that governs the period after 20 September 2020 prescribe what must be filed with a claim on or after 3 August. It doesn’t make sense. But then little does these days, so roll with it.

Is there any point in filing a reactivation notice before 20 September? In my view, no – as PD 55C technically doesn’t apply to any period prior to 20 September 2020 (this 3 August thing apart). If filed prematurely, who knows what the court office will do – hold on to them, send them back, lose them… but I don’t think they will have any effect or have any regard taken to them prior to 20 September in any event.

Now for the crystal ball bit…

I’d be frankly surprised if there wasn’t a judicial review of the decision to extend the stay to 20 September very shortly. If that succeeds, then.. well I don’t know what and it is too late to think through the detail. But it might happen.

I very much doubt that the Govt’s promised extension to six months of some, but apparently not all, notices seeking possession will have retrospective effect. It would, to be frank, be an utter horrorshow of confusion and be a racing certainty to face judicial review challenge if it did. So let us assume that the promised 6 month notice period (for some but not all notices) will take effect at some later date.

Given the nature of the likely regulations (and perhaps primary legislation) required, I would be surprised if anything happened before parliament returns on 1 September 2020, and quite possibly a while after that (although if likely to be after 30 September 2020, there will also need to regulations extending the Coronavirus Act 2020 Schedule 29 powers which otherwise expire on 30 September).

So, in the meantime, until an uncertain date likely to be after 1 September 2020, three month notice periods remain valid.

This means that as of 20 September, possession claims will proceed on notices served between 26 March (and before, obviously) and 20 June, and then rolling out for notices between 20 June and, well, whenever the six month notice period comes into force.

The ‘prioritisation’ of hearing of ASB possession cases and cases of rent arrears of over 12 months referred to in the Govt press release is, I think, a reference to the guide being prepared by the working party led by Knowles J on possession claims. If so, this will not be statutory or part of the civil procedure rules, but a guide for the courts on conducting possession claims (including how hearings will work, which for first hearings will be at roughly 25% of the pre pandemic listing rate).

And finally, as mentioned before, Section 36 Deregulation Act 2015 means that section 21(1) notices cease to be valid 6 months from the date of service. That will be fun with a statutory 6 month notice period, unless something is done on that, as it would mean the end of s.21(1) – at least until March 2021, on what the Govt has said. Confusingly, it wouldn’t affect s.21(4) notices, as those would remain valid for 4 months from the date notice expires. It would mean the same for s.21(4) notices, as a six month notice period would mean that s.21(4)(b) could never apply, so s.21(4E) will not be engaged and no ‘4 months from date of expiry’ comes in to effect.

I will confess to having dreams in which this is all an elaborate plot by ministers to drive housing lawyers mad…

Update 28 August 2020 – the statutory instrument creating new notice periods was released on the afternoon of Friday, 28 August, coming into force on Saturday 29 August. The regulations are here https://www.legislation.gov.uk/uksi/2020/914/regulation/3/made. A post on the regulations is underway. It is complicated…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

16 Comments

  1. Patrick Spence

    your amendment/correction re, s21(4) notices does not appear in the email circular

    Reply
    • Giles Peaker

      No, corrected this morning. Will do an erratum email.

      Reply
  2. Ben Reeve-Lewis

    A lawyer on Twitter just reported that the London courts are refusing to accept reactivation notices before 20th Sept. As you suspected.

    I know the online landlord community are up in arms and as an illegal eviction specialist I have been pondering on whether or not we will see a rise in them as a result of frustrated attempts at possession claims and notice comments from Paul Shamplina and an article by David Smith, suggesting illegal evictions are likely to rise in response. Curious views given Safer Renting are at pains to separate normal landlords from the criminal ones. The suggestion from the industry itself seeming to be that the stays and various confusions in possession actions are likely to push normal landlords into criminality

    Reply
    • John

      Well, how much longer do you suggest that Landlords provide free accommodation before taking matters into their own hands? Some will be coming up for six months with no rent due to the Chinese disease, if GP is correct and cases proceed at 25% of the previous rate then the wait for a Court date is likely to be around a year, so a wait of eighteen months and rising in total , Will you wait 18 months without payment of your salary, I think not. If otherwise law abiding landlords resort to “self help” GIVEN THESE CONDITIONS, who would blame them, and it could be on such a scale that you and the LA’s would be totally overwhelmed……but hey, keep up with the Landlord bashing…….just be careful what you wish for.

      Reply
      • Giles Peaker

        It would, of course, still be an illegal eviction, so I suspect the answer to ‘who could blame them?’ would be the criminal and civil courts.

        This is not to say that the complete failure of the government to do anything to address coronavirus related arrears is acceptable. It isn’t. Both Scottish and Welsh govts have taken steps. Not England so far.

        Reply
    • Michael Barnes

      I don’t know when 55C was changed to 20 September, but surely any reactivation notice issued on or after 20 August and before the 55C update is valid and the courts should accept them.

      Reply
      • Giles Peaker

        No. PD 55C wasn’t even supposed to be in force until 23 August. Anything pre 23 August is definitely out. And the amended version – put up on 24 August 2020, says it provides for the period from 20 September, so likely to be interpreted as no valid reactivation notice until 20 September.

        Reply
  3. Mara D

    “and, well, whenever the six month notice period comes into force.”

    Apparently it’s today, 29 August.

    https://www.gov.uk/government/news/government-has-changed-the-law-so-most-renters-have-a-6-month-notice-period

    “These changes mean that from 29 August, landlords must provide at least 6 months’ notice period prior to seeking possession through the courts in most cases, including  section 21 evictions and rent arrears under 6 months. Notices served on and before 28 August are not affected by these changes, and must be at least 3 months.”

    “The government is also helping landlords affected by the worst cases to seek possession; these are:

    anti-social behaviour (now 4 weeks’ notice)
    domestic abuse (now 2 to 4 weeks’ notice)
    false statement (now 2 to 4 weeks’ notice)
    over 6 months’ accumulated rent arrears (now 4 weeks’ notice)
    breach of immigration rules ‘Right to Rent’ (now 3 months’ notice)”

    “We have also extended the validity of a section 21 notice from 6 to 10 months to accommodate this change.”

    Reply
      • Jon Moore

        Dear Giles, following Jenrick’s announcement on 21st August in which he wrote, inter alia, “I am also increasing protections for renters – 6 month notice periods must be given to tenants, supporting renters over winter” and yesterday’s announcement that, “Notices served on and before 28 August are not affected by these changes, and must be at least 3 months”, I, and I would imagine many renters like me, have now been served a section 21 in the window between the 21st Aug and today, when the new six month notice period became official.

        As a former landlord myself, while I have sympathy for landlords and the current situation, some tenants have been absolutely shafted here. This eight day window, while great for landlords, is not “supporting renters over winter”. In your experience / opinion, is it possible that an amendment will be made to exempt those renters, like me, who were served notice between his (Jenrick’s) announcement on the 21st Aug and the regulations officially coming into effect today? At the very least, when Jenrick announced these changes on the 21st, he could have slapped a ban on all section 21s being issued until the law had been passed, or alternatively set a longer period between the announcement and proposed changes coming into effect.

        Reply
        • Giles Peaker

          I’m afraid I think the prospects are roughly nil. Any retrospective legislation is complicated and high risk as well as unfair to somebody.

          And Jenrick couldn’t just have ‘slapped a ban on s.21’ on 21 August. That would require legislation, probably primary legislation.

    • Michael Barnes

      “The government is also helping landlords”

      But that is not helping in any way those landlords who have already suffered significant losses in any way.
      It is just spin.

      Reply
  4. Jade

    If an N24 has been been received as the claim was brought before the 25th will a reactivation still be required once the stay has ended?

    Reply
    • Giles Peaker

      An N24? Why a draft order? And before 25th of when?

      A reactivation notice will be required for any possession claim issued before 3 August that was subject to the stay. That notice should be filed and served after 20 September 2020.

      Reply
  5. Kha

    Would this 6-month notice period apply to guardianship companies and guardians? It’s unclear if guardianships and guardians would be considered as landlords and tenants under this ruling, and guardians are typically served with a 28-day notice under normal circumstances.

    Reply
    • Giles Peaker

      No, if the guardian has a licence this does not apply. It would if the occupation was found to be under a tenancy as it would be an AST.

      Reply

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