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Unlawful eviction and harassment

Eviction stay and 6 months notice requirement extended

The Govt has today (10 March 2021) announced that the ban on bailiff evictions and the requirement for 6 months notice on Notices Seeking Possession (and Rent Act NTQs) will both be extend to 31 May 2021. Both were due to expire on 31 March 2021.

We will have to see if there are any changes or tweaks to the exceptions to both the eviction ban and the 6 month notice period. None are evident from the Govt announcement, but they have form for sneaking them out in the legislation…

 

 

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.

24 Comments

  1. Claire Pearce-Crawford

    Wales?

    Reply
  2. Dominic

    Hi Giles, thanks for this post. I’m trying to clarify if the eviction ban extension applies to licenses to occupy/property guardians covered by the Protection from Eviction Act. Do you know if that’s the case? I understand the 6 month notice period does not apply to those with licenses to occupy.

    Reply
    • Giles Peaker

      The current one does. All residential evictions.

      Reply
      • Dominic

        Thank you.

        Reply
  3. John

    The Gov’t also continue to lie about the “exceptions” where eviction is allowed. They have thrown a further step into the process, and NoP and WoP are not sufficient any longer, you have to make a further application to the Court for the NoP to state SPECIFICALLY that exception applies to the case, which the vast majority will not obviously. This step will require a hearing with the usual notice periods involved of course. Someone please tell me my reading of this is not correct.

    Reply
      • John

        The lie is that the “exceptions” are illusory and for PR purposes only. DJ’s are doing everything they can to frustrate LL’s with legitimate grounds for a Bailiff’s appointment from actually obtaining same. Why, when the latest regulations clearly state “six months arrears”, which we clearly had prior to the February ’20 hearing and clearly have over double that now, does the clown of a DJ ask for a rent arrears schedule, apart from the matter of us complying with this nonsense will take another four weeks for the hopeless CC to deal with, which edges them ever closer to the 31st May deadline.

        Reply
        • Giles Peaker

          It is in the guidance – you have to provide the rent arrears schedule with the application. If you didn’t, I’m afraid that is your problem.

        • John

          We did, for the original hearing back in Feb’20, the latest regulations only require six months arrears, which we already had. It’s delaying tactics and nothing else. We already know that all applications for High Court Enforcement are being refused at this CC. The HCEO’s have openly stated they have received no work from this group of courts since the re-opening of the CC’s in September ’20.

        • Giles Peaker

          The requirement is 6 months arrears outstanding. So of course you have to file up to date rent statements with the application, to show outstanding arrears. if you didn’t do so, then I’m afraid you have brought the delay on your self.

  4. Katie

    Hi Giles

    I have come across a several areas of concern and wanted to ask if you can verify if they are legal or the arguments one might use to confront them.

    The first is that the new legislation has a flaw (although it may be deliberate); it stops new cases being started and it stops the bailiff evictions, however, those cases already in the system are proceeding and Judges are able to make an order for possession, but it will not be enforced until other restrictions are lifted.

    The second is that the number of months rent owed is a barrier for new S8’s, but not for decisions of S8’s already in the system for which the ground is still 2 months.

    I have seen cases reactivated despite not passing the 9 month limit that was previously in place, using arrears statements from 2019 that have since been substantially lowered to under 3 months.

    I am wondering if this is actually a judicious way to reduce the backlogs in the courts, but may cause a sudden and large obligation on local authorities as the restrictions are lifted..

    Fourth is that procedures for enforcement of High Court writs of possession have changed; suggesting court permission is no longer required to transfer an order to the High Court for enforcement by a High Court Enforcement Agent, although an application will still need to be made. If this is true it will make it far easier for landlords to use a High Court Enforcement Agent to undertake their eviction?

    Also faced with the order for the eviction, that tenants with rights to be rehoused by councils will leave to avoid further eviction costs, but by doing so will make themselves intentionally homeless, yet the councils are reverting to delaying until bailiffs actually evict.

    I would appreciate your thoughts on the above.

    Reply
    • Giles Peaker

      Hi Katie

      I think you are mixing some things up somewhat.

      The legislation doesn’t stop new cases being started. Nor does it stop cases that are in the system from proceeding. This is not a ‘flaw’, this is deliberate.

      The number of months of rent arrears owed is significant in two ways – firstly for the notice period required on a s.8. That obviously does not affect notices served before the legislation came in. Secondly, it is an exception for the eviction ban. That affects all rent arrears possession orders, regardless of when the notice was served.

      Reactivation is not the same as needing to meet the rent arrears exception threshold. Any claim can be reactivated. The courts are supposed to be prioritising cases with over 12 months arrears, according to the ‘general arrangements’, but there is no reason that any claim can’t be reactivated.

      High Court writs now have to give the occupants at least 14 days notice of the date of eviction, as do county court bailiffs. This procedure has been standardised across county and High Court. Claimant still needs permission to transfer up by the county court.

      Leaving after possession order but before eviction is not intentional homelessness. A person is classed as homeless at the point of a possession order (under Homelessness Reduction Act). Councils may well delay doing anything until bailiffs evict, but this is just to avoid having to arrange temporary accommodation and in the hope that something else will come along in the meantime.

      Reply
  5. Katie

    Sorry Giles, I meant stopping new cases being started unless they met a threshold of arrears (previously 9 months and now 6 months I think), along with other exceptions.

    I actually agree that cases already within the system should proceed and did think it was clever, what I meant about flaw was the general perception that eviction proceedings can’t move along.

    Sorry if I did not make it clearer in my question, but just to confirm you are saying; cases started before March 2020 and reactivated proceed (albeit 12 month rent arrears are priority) continue and are an exception for the eviction ban?

    When you say

    “That affects all rent arrears possession orders, regardless of when the notice was served.”

    What is the “that” do the arrears have to exceed just the usual 2 months or do they now have to exceed 6 months (previously 9 months).

    Usual advice would be to suggest to tenants to get the arrears below 2 months to increase chances of S8 failing, but cautioning them that a conditional judgement may be made on them not exceeding 2 months moving forward.

    So would it be still be best to advise 2 months or 6 months?

    Regarding the High Court Enforcement I have followed the shoddy practice that was previously in place and the practice note issued by Senior Master Fontaine of the High Court, Queens Bench Division, well documented by you here

    https://nearlylegal.co.uk/2016/03/righting-wrong-writs-high-court-enforcement/

    However, following paperwork in claims and looking up firms in LL emails advising in claims, I saw one saying that Court Permission was no longer necessary and wondered if this was some sort of Covid suspension. Can you point me to any blog post or change in practice direction that standardised the procedure or is the post above what you were referring to.

    If the promise they make is fake I can report their site to the Advertising Standards Authority, I was just concerned that they may have found another back door.

    If Covid pandemic was not temporary one might consider creating one of your wonderful flow charts!

    Thanks for clarifying regarding Homelessness Reduction Act.

    Regarding the reactivation, with the extention to May 2021 for eviction ban, do you know if the dates in PD55C been extended to cases being vacated and stayed?

    PRACTICE DIRECTION 55C –

    2.5 Unless the court orders otherwise, any trial date set prior to 27 March 2020 (the date on which Practice Direction 51Z came into force) shall be vacated and the case stayed unless a party complies with the provisions of paragraphs 2.1, 2.3, 2.4 and 5.1 not less than 42 days prior to the hearing date.

    2.6 If by 4.00 p.m. on 30 April 2021 no reactivation notice has been filed and served in relation to a stayed claim to which paragraph 2.1 applies, that claim will be automatically stayed.

    2.7 A stay under paragraph 2.5 or 2.6 is not a sanction for breach; and an application to lift the stay is accordingly not an application for relief from sanctions under rule 3.9.

    Reply
    • Giles Peaker

      Katie, you are still mixing up everything.

      There never was a coronavirus related rent arrears threshold for *starting* a possession claim. Hasn’t been one since March 2020, still isn’t one.

      Any possession claim that was stayed in the general stay March-Sept last year can be reactivated and proceed to possession order. Any possession claim at all. But the only ones where evictions will be carried out (until end of May anyway) is where the claim (and ground on possession order) meets one of the exceptions – 6 months rent arrears, ASB etc,

      A ground 8 possession claim is still mandatory on 2 months arrears. That hasn’t been changed, so the advice should be the same. The only difference is that the actual eviction by warrant will not go ahead unless the arrears are over 6 months.

      There is no longer any need for notice to the occupiers of an application for a writ in the High Court. There is still a need to obtain the permission of the county court to transfer up.

      There has been no further change to PD 55C, save that PD 55C remains in force until July 2021. You can look this up rather than asking me, as PD 55C is freely available online! PD 55C has nothing to do with the eviction ban.

      Reply
  6. Lydia

    Hi Giles, just a quick question, I have a few cases where tenants were served Section 21 Notices prior to the Pandemic and APP was in the system before the new regulations. They had rent arrears (which are now over 12 months) but the landlord wanted quick eviction Section 21 and not to do Section 8 for claiming any rent arrears. Obviously with hind sight would have been beneficial now! The cases have been re-activated and court orders for possession finally obtained. However, due to the new regulations they will stay in the bailiffs queue for eviction until after the 31st May 2021. Is this correct? Is there any other way around this due to large rent arrears? Many thanks

    Reply
  7. Lydia

    I thought not. Always worth double checking! thank you Giles.

    Reply
  8. Stephen Phillips

    Giles, what are the chances that the 31st May extension will be further extended and do you think it if is that subsequent extensions will be tapered downwards over time? I have a client who wants me to serve section 8 and 21 Notices. If they are served now they have to be for 6 months. If I wait until the 1st June, and the Government don’t extend the extensions, they can be 14 days and 2 months respectively.

    Reply
    • Giles Peaker

      Who knows? That said, my suspicion is they won’t be extended, but I’ve got no inside knowledge on this.

      Reply
  9. David

    @Stephen I have no inside information but I have made similar enquiries for the same reasons, the noises I am hearing are that it will NOT fall off a cliff and return to usual timescales, but roll back to the previous notice of 3 months.

    If you have S8 grounds that are grave enough you might be able to punch through delays now anyway.

    The benefit of proceeding now is that you get a higher place in the queue, you can expect there to be a rush on new claims once things are lifted so you might be trading one delay for another. I would serve the S21 now and hold off the S8 until the end of the month, you can always replace the S21 if they do not roll back slowly.

    Reply

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