16/11/2020

Finally, lawful non-evictions

Why yes, we have been going on about the apparent unlawfulness of the Lord Chancellor suspending evictions by, well, just asking bailiffs not to evict people. We said it in the first place, and also when it was extended for the national lockdown. Today it appears that the Govt has finally moved to put it on an at least prima facie lawful footing.

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 were laid today (16 Nov) and come into force tomorrow (17 Nov) in England only.

As far as evictions go, these regulations remain in force until 11 January 2021. The taking control of good element (reg 3) will expire when the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 expire – which is 28 days from 5 November 2020.

Reg 2 concerns evictions, and exceptions to the general ban.

2.—(1) Subject to paragraphs (2), (3), and (5), no person may attend at a dwelling house for the purpose of—

(a) executing a writ or warrant of possession;

(b) executing a writ or warrant of restitution; or

(c) delivering a notice of eviction.

(2) Paragraph (1) does not apply where the court is satisfied that the notice, writ or warrant relates to an order for possession made—

(a) against trespassers pursuant to a claim to which rule 55.6 (service of claims against trespassers) of the Civil Procedure Rules 1998(1) applies;

(b) wholly or partly under section 84A (absolute ground for possession for anti-social behaviour) of the Housing Act 1985(2);

(c) wholly or partly on Ground 2, Ground 2A or Ground 5 in Schedule 2 (grounds for possession of dwelling houses let under secure tenancies) to the Housing Act 1985(3);

(d) wholly or partly on Ground 7A, Ground 14, Ground 14A or Ground 17 in Schedule 2 (grounds for possession of dwelling houses let on assured tenancies) to the Housing Act 1988(4); or

(e) wholly or partly under case 2 of Schedule 15 (grounds for possession of dwelling-houses let on or subject to protected or statutory tenancies) to the Rent Act 1977(5).

(3) Paragraph (1) does not apply where the court is satisfied that—

(a) the case involves substantial rent arrears; and

(b) the notice, writ or warrant relates to an order for possession made wholly or partly—

(i) on Ground 1 in Schedule 2 to the Housing Act 1985;

(ii) on Ground 8, Ground 10 or Ground 11 in Schedule 2 to the Housing Act 1988; or

(iii) under case 1 of Schedule 15 to the Rent Act 1977.

(4) (a) For the purposes of paragraph (3), a case involves substantial rent arrears if the amount of unpaid rent arrears outstanding at the date on which the order for possession is granted is at least an amount equivalent to 9 months’ rent; and

(b) for the purposes of sub-paragraph (a), any unpaid rent arrears accrued after 23rd March 2020 must be disregarded.

(5) Paragraph (1) does not apply where the court is satisfied that the notice, writ or warrant relates to an order for possession made wholly or partly on Ground 7 in Schedule 2 to the Housing Act 1988.

(6) Where paragraph (5) applies, the person attending at the dwelling house must take reasonable steps to satisfy themselves that the dwelling house is unoccupied before—

(a) delivering a notice of eviction;

(b) executing a writ or warrant of possession; or

(c) executing a writ or warrant of restitution.

Notably, as well as the ASB, trespasser, death of assured tenant, and domestic abuse exceptions previously raised in the Lord Chancellor’s letters to bailiffs, there is now a rent arrears exception for Rent Act/secure/assured/assured shorthold tenancies for ‘substantial arrears’. What substantial arrears is defined as is at least 9 months arrears at the date on which the possession order was made.

But – and this is going to be messy in practice – this cannot include any rent arrears accrued after 23 March 2020. (Covid period rent arrears not counting? I wonder where they got that idea…). I’m not entirely sure that bailiffs will be scrutinising schedule of rent arrears to determine what arrears accrued when, and what the level was at the date of the possession order, but the upshot of this is the court would have to be satisfied of this for the bailiffs to carry out a lawful eviction. I presume this means an application to the court would be required, not simply a request for a warrant. (see update below).

Quite why the proclaimed public health protection purpose of these regulations is overridden by ‘substantial arrears’ is a mystery to me, as so far the Coronavirus has not shown a tendency to shun people with rent arrears, but logical consistency is probably too much to hope for.

Why has this happened now? I gather a Judicial Review pre-action protocol letter was sent to the MoJ recently on the (lack of) lawfulness of the Lord Chancellor’s letters. That might have been a factor…

Update 18/11 – I have been officially told that what would be required for an eviction under the exceptions is an application to the court in CPR part 23 form. Where a possession order has not yet been made, when it is made the court can record on the face of it whether any of the Reg 2 exceptions apply.

 

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.

43 Comments

  1. D

    Even more oddly, the exemptions don’t apply to PRS tenancies not covered by the Housing Act 1988 or residential licences so they can stay. Presumably they have more chance of being a health risk…

    Reply
    • EB Montorio

      Could a lawyer advise on whether Property Guardians can currently be evicted on 28 day notice – eviction date 17 December 2020. Local authority taking back LA flats en masse, stated reason ‘to house homeless people for Christmas’. In situation where:
      1. Self contained flats – Bruton.
      2. PGs – quite a few of, would then be statutory homeless themselves – their personal situations having changed during pandemic
      3. Some it seems Clinically Extremely Vulnerable

      Also appreciated – any comments on eviction notices which give date of 17 Dec, noon, but also say that PGs should move out a few days in advance of that date.

      Reply
      • Giles Peaker

        We can’t advise on individual cases. However, the expiry of a NTQ is not an ‘eviction date’. Warrants of eviction after a possession order are suspended until 11 January 2021.

        Reply
  2. Paup ellis

    Common sense finally prevails, so in practice what is the next step? Pre-March 2020, 9 months arrears, cases in abundance, good for a HC writ now to speed it up? Or shall I call my local friendly CC bailiff and tell him / her the new law/rules/Guidance when they say ‘what you on about?’ Already have warrants cancelled I think twice now

    Reply
    • Giles Peaker

      Well you are going to have to satisfy whoever it is that there were 9 months arrears (pre 23 March arrears) as of the date that the possession order was made. How you go about that I have no idea.

      Reply
  3. Rokaya Hajji

    Who came up with 9 months? 2 months is mandatory Possession!

    Reply
    • Giles Peaker

      And it still is 2 months for a mandatory possession order. This is where there is already a possession order.

      Who knows why 9 months? It is 6 months rent arrears o be able to serve a notice shorter than 6 months at present, and 12 months rent arrears to be a priority claim in the county court. Pick a number, any number.

      Reply
  4. Ben Reeve-Lewis

    2 questions Giles
    1)Para 3 there, relating to rent arrears, states “does not apply where the court is satisfied” but applying for a warrant for breach of a suspended possession order, doesnt require the landlord to ask the court’s permission to apply for a warrant. Does “The court” mean “The Bailiff” and
    2) if the bailiff misunderstands these new provisions and executes the warrant erroneously, presumably that could be an illegal eviction?

    Reply
    • Giles Peaker

      Until any further clarification, I think ‘the court’ has to mean the court. The bailiff is just an officer of the court. So I think there would need to be an application to the court.

      The bailiff would be acting unlawfully in those circumstances, so yes, I think it would be an unlawful eviction.

      Reply
  5. Claire Pearce-Crawford

    What about Wales !

    Reply
  6. ID

    In respect of 2a, what is the position where there is an order for possession against a trespasser (tenant exercised break clause in AST and then refused to leave) whose name we know? Does the stay apply in this case too?

    Reply
    • Giles Peaker

      I think so – CPR 55.6 claims only (against persons unknown).

      Reply
  7. Naz Abbabil

    It would have been a lot easier for the government to say that evictions can only de done when it so decides and conditional upon ALL prerequistes having been complied with. Payment of rent is optional.

    Reply
  8. John

    Cue the 1000% increase in unlawful evictions, even the most philanthropic of landlords will not be willing to put up with this nonsense any longer, who knows what this lunatic Gov’t will dream up in the period from today up 11th January ’21, they’re literally trying to destroy our businesses. This is as clear a signal as you could wish for that payment of rent is optional for ANY tenant now. BR-L had better get the job adverts ready because he’s going to need an army of staff in the very near future.

    Reply
    • Giles Peaker

      The tenants still owe the money. And possession claims are still ongoing, so this is, in effect, only in relation to pre-existing possession orders.

      To be honest, I’m not sure that ‘landlords will only obey the law when it suits them’ is the best slogan for your campaign.

      Reply
  9. Jaybee

    Jenrick was spouting barefaced lies on Sunday (tv) saying the Gov’t have provided protection for landlords so they can evict non paying tenants. Absolute b******t.

    Reply
    • Giles Peaker

      Well, it is actually true. Just depends when they didn’t pay and how much they didn’t pay…

      Reply
      • John

        I didn’t see anywhere about a “how much”, I understood it to be 9 months arrears as at 23/3/20, pity the landlord with an expired PO and only eight and a half months arrears at 23/3. They could be lumbered with their “guest” for the foreseeable future whilst Baldrick dreams up more nonsense. I can see this all ending very, very badly.

        Reply
        • Giles Peaker

          9 months is ‘how much’, is it not – that is a precisely quantifiable figure. And not as at 23 March, rather as at date that possession order was made.

  10. Ben Reeve-Lewis

    I’ve always been at pains to separate the behaviour of normal landlords from that of criminal and rogue landlords that my crew, Safer Renting deal with. And I get regular support from normal landlord spokespeople, in places like the NRLA, ARLA, RLA etc, similarly emphasising that they are not those kinds of people.

    However, I have read articles online by Dave Smith and landlord eviction specialist Paul Shamplina about how this current madness will push normal landlords towards illegal eviction and I totally see how that is likely to happen but doesnt this rubbish the efforts made by the “Normal” landlord community to distance themselves from Safer Renting’s usual nutbags?

    Thucydides, writing about a Pandemic in Athens 2,500 years ago wrote of the thin veneer of civilisation, that collapses in such times, when landlords drop any pretences and move to protect their investments, as suggested by comments from John above.

    Dont get me wrong. I get that but it also rubbishes the notion that normal landlords are a different breed from rogue and criminal landlords. People will always do what they need to do to protect themselves. Illegal eviction is a criminal offence and the law doesnt delineate on reasons for it.

    Reply
    • Giles Peaker

      That was where my comment was headed…

      Reply
      • John

        Trouble is Thucydides wasn’t owed sixteen grand (and still rising) I’m well past my limit of patience now and I expect you would be as well, meanwhile we sit back and await whatever load of old (and probably unlawful) tosh Baldrick will trot out between now and 11th January 2021. Perhaps BR-L could suggest an amount of debt that Landlords accept before taking matters into their own hands, eighteen grand, twenty grand, fifty????? pick a number, any number???

        Reply
        • Luke

          Perhaps a more understandable analogy to someone who is not on the receiving end…if, say, eating were ‘against the law’, how many days would BR-L consider acceptable to obey this law before he were to break these rules in order to survive…?

  11. Ben Reeve-Lewis

    You have done what so many landlords do when reading comments critical of the system and taken it personally. I have said quite clearly above that I absolutely get why landlords are likely to illegally evict. i’m in total agreement with the articles by David Smith and Paul Shamplina cited above. I think its inevitable and at Safer Renting we are battening down the hatches expecting a rocky winter. We have already seen a 60% increase in illegal evictions during lockdown and speaking to someone from Shelter Cymru a couple of weeks back they have recorded a 74% increase.

    My point is, that this kind of crisis is an inevitable result of the whole system of renting, where one person’s home is somebody else’s personal investment. When that investment comes under threat, investors are going to have to take action to protect it. That’s how the market works. RRos are unlikely to be much of a threat because an award can only be made for “Rent paid”. Damages are also a thin possibility given the inadequacies of legal aid and criminal prosecution is also not much of a risk given the austerity cuts that have seen so many TROs down the dole office.

    So its probably not too risky a prospect to be honest, Throw people on the street and let the homelessness units pick up the piece for those owed a duty. Its not your fault.

    Reply
    • Luke

      It’s no surprise LLs take it personally when the attacks are relentless. I just hope you also firmly support a better solution to housing in this country along with enforcement against those that do provide it, for that is truly the crime here. The state is attempting, legislating, to use private property for their own statutory fulfillments. Much of the recent changes are for their own benefits, not tenants’, no matter how veiled.

      Reply
  12. R

    As ever with this Government and hastily-drafted rules in general, these Regulations can throw up some very bizarre situations.

    My employer’s stance as both a landlord and a Registered Provider is that we will do our utmost to avoid evictions. But in a few cases we have no real choice.

    In one case we have received no rent at all for 18 months. The tenant owes over £7300 – 18 months’ worth of rent. But under the new Regs we cannot evict.

    We started possession proceedings when the arrears were over £2700. We obtained an outright possession order at the start of the year, and applied for the warrant a few weeks later after giving the tenant time to look for a solution. However, no eviction date was set as a result of Lockdown 1 and then the general stay on possession proceedings.

    When the stay was lifted, the local county court did not automatically revive its stayed warrants. Instead, we had to issue a new warrant application on a form N325, which was done a week or so after the stay was eventually lifted early in October. No date had been set for the eviction.

    Then we had Lockdown 2, the Lord Chancellor’s request, and the new Regs.

    This tenant had 8.75 months’ worth of rent arrears when the possession order was made, and 18 months’ worth now. But the Regs prevent the court from taking into account the complete lack of any payments since March, and prevent the bailiff from scheduling any eviction until after 11/1/2021 at the earliest (by which time we’ll be owed over £8k).

    We won’t carry out an unlawful eviction; it’s not right nor ethical, and it’s more than either our G1 governance rating or my practising certificate are worth. But I could well understand a landlord in the PRS taking a different point of view.

    Reply
    • Luke

      Purely out of interest, how many more months, even if only hypothetically, before it is worth your G1 governance rating or practising certificate?

      Reply
      • R

        I’m not putting either at risk over tenancy arrears, even if they are in four figures and five figures beckons. The practising certificate is the end result of a process that now costs over six figures, and losing a G1 Governance rating would probably cost the business at least seven figures. But there comes a point where rather than venting on a blog I look to find creative but legal ways around the problem.

        Reply
    • John

      You may have done this, but go back over the tenants entire rental history, you may find a shortfall here or there and that may push you over the nine month threshold, otherwise you are stuck with this comedian for the duration.

      Reply
  13. John

    Ben, the homelessness units won’t be picking them up though, will they. If the eviction is for rent arrears, then they have no duty, as far as i can see, unless the CV Act has made changes to that duty that I am unaware of, the evicted tenants will be told to clear off. Don’t forget there are also all sorts of nonsense going on regarding people that have been furloughed. A LL friend of mine has a tenant that has “been made redundant”, said LL went around to see if he could be of any help regarding UC etc, it was only in a casual conversation with a neighbour (he’s owned the house for years) that he found out the tenant wasn’t out of work at all, he had been furloughed and therefore able to pay the rent. There are all manner of dodges being carried out and you will be picking up the pieces for the next couple of years at least.

    Reply
    • Giles Peaker

      Which is where the public health bit comes in.

      Reply
  14. Ben Reeve-Lewis

    John you are massively oversimplifying how intentional homelessness works. An applicant can only be found IH if it would have been reasonable for the applicant to have remained in it and affordability is one of those factors. In Hillingdon v. Tinn the judge said that it would be unreasonable to remain if a person could not pay rent without so straining their resources as to be unable to pay for the ordinary necessities, such as food, clothing etc. A person being found IH purely because of rent arrears without the caseworker having investigated all the supporting factors, including examining all evidence of income and expenditure, would be grounds for a judicial review.

    Having said that, such decisions are made and go unchallenged, in which case the illegally evicted family would be street homeless. Or if children are involved the housing duty would fall to social services but at least the investment has been protected!

    Reply
  15. John

    I think close to 21 months with no rent is long enough, don’t’ you, the bloke has worked throughout, so deliberately withholding rent, time for him to go.

    Reply
    • Giles Peaker

      Why haven’t you done a money claim for arrears and followed up with an attachment of earnings order?

      Reply
  16. John

    The solicitors are relying on the court CCJ, which we still can’t quantify as the arrears continue to mount. Giles, does this new regulation override the “Christmas Truce” or not? if no, the Court only have to drag their feet until 27/11 and then they’re home free with nothing to do until 11/1/21. Believe me, they really are dragging this out, court office staff appear unaware of these new regulations and were (yesterday) still quoting the previous unlawful guidance. Btw, your estimate of cases proceeding at 25% of previous levels is very optimistic, if they hit 10% it will be a miracle.

    Reply
    • Luke

      Nothing to stop you submitting the Claim at the current arrears, then a follow-up Claim after they’ve gone. I regularly get tenants back on track with this method.

      Reply
    • Giles Peaker

      This makes little sense to me – if it was a rent arrears possession claim, the arrears as at the date of the possession order would have to have been quantified. If it wasn’t a rent arrears possession claim, and there was no separate money claim, there is no debt CCJ?

      Reply
  17. D C Millican

    My Local Authority informs me the County Court is not issuing eviction dates due to,’the backlog’ despite this possession order being for trespass by squatters.

    Reply
  18. Ben Reeve-Lewis

    @DC I get the impression that the courts are in a far worse state than the MOJ is letting on. We too are hearing various bits of news about responses of different courts. About a month back one of our crew tried calling Edmonton County Court to check up on a pending court case and despite calling 53 times over 2 days, nobody picked up and then there are the individual leanings of each judge, who even at the best of times arent known for their consistency or predictability. I recall reading just a few weeks back that there was a recruitment drive to find 200 judges. I dont know what happened there. People ask us what is going to happen with their case and all we can tell them is what should happen, not what will happen.

    Reply
    • D C Millican

      @ Ben Reeve Lewis I’ve been informed that the Possession Order is against named persons and, ‘ persons unknown’ so it is not an exception. A long wait is anticipated,

      Reply
  19. Midlander

    @Giles Peaker et al
    Does the restriction on “attending a dwelling house” for the purposes of “delivering a notice of eviction” mean that section 8 / section 21 notices cannot be served from 17th November to 11th January (unless the case falls within one of the exceptions)? Or do the regulations mean the Notice of Eviction provided by the Bailiff? A bit ambiguous!

    Reply
    • Giles Peaker

      No, just notices of eviction. And attending, so doesn’t include by post, I think.

      Reply

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