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.