New guidance has been Released in Relation to Residential Possession Proceedings

New Residential Possession Proceedings Guidance

The stay on eviction proceedings finally comes to an end on 20 September 2020, meaning that possession proceedings can be commenced and/ or reactivated as of 21 September 2020 (for further information please see our previous blog on the new process which can be found here).

New Guidance

As of 18th September 2020, a barrage of new material has been released in anticipation of the stay being lifted, including information from the Master of the Rolls in relation to the overall arrangements for possession proceedings, and an assortments of letters, notices and information packs which will be sent to claimants/defendants depending upon the position of the claim, published by HMCTS. Within these documents is a template reactivation notice, which landlords may need to file and serve to continue with an existing claim which was stayed.

In addition to this, the National Residential Landlord Association has also published their “Golden rules for dealing with rent disputes” guidance.

The Ministry of Housing, Communities and Local Government have also published a guide for private landlords in England and Wales, to further explain the changes.

All of these resources certainly provide a welcome insight into how the new system is going to work, and the changes which are being introduced.

What does the guidance add?

Priority Listings

The courts seem to be aiming to use their time as “effectively and proportionately” as possible and, as such, have introduced a “priority” system. By way of guidance, the following would generally be deemed as a priority:

1. Cases with allegations of anti-social behaviour

2. Cases with extreme alleged rent arrears accrued - that is, arrears equal to at least (i) 12 months’ rent, or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source

3. Cases involving alleged squatters, illegal occupiers or persons unknown

4. Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted)

5. Cases with allegations of fraud or deception

6. Cases with allegations of unlawful subletting

7. Cases with allegations of abandonment of the property, non-occupation or death of defendant

8. Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’

Subject to the above, priority would generally be given to claims issued before the stay commenced in March 2020.

Service of Reactivation Notices

The guidance suggests that landlords have from 21 September 2020 until at least 29 January 2021 to file a reactivation notice, and so there is no rush. Landlords should be cautious with this advice, however.

Whilst the guidance states that landlords have until at least 29 January 20201 to file a reactivation notice, this may not be the case. Any possession claim with a hearing already listed requires a reactivation notice to be filed and served at least 42 days before the hearing. It is vital that landlords are filing this notice in good time to ensure they are not prevented from continuing the current claim.

If a landlord is in any doubt as to when to file a reactivation notice, specific legal advice should be sought.

Covid-19 Case Marking

Any defendant or private claimant (ie not a company) will be able to request that their case is Covid-19 marked, to assist monitoring in cases where the claimant and/or the defendant believe that they have been particularly affected by the Coronavirus pandemic. This will assist the court with listing, case management and with any discretion as to decision making.

The request to be Covid-19 marked can be made at any time, and the individual proposing the marking must inform all parties and provide specific information in relation to their circumstances. The court can also decide whether a claim should be marked.

Enhanced Legal Advice for Defendants

Non means tested, free of charge, legally aided advice and assistance will be available to the defendant through revised duty scheme arrangements, at two points: the review date (which will be explored further below) and at the hearing, if there needs to be one.

All legal aid duty scheme contracts have been adjusted to allow the advice and assistance to be provided flexibly, including face to face (at Court building or suitable off-site location), video or phone (adviser calling back where necessary to address call costs problems and manage demand across the day).

Introduction of a “Review Date”

Each claim will be given a “review date” where a very short review appointment will be listed by the court. This will be conducted by a Judge based on the documents and without attendance by the parties.

At least 14 days before the review date, the Claimant will be required to provide the court and the defendant with a bundle of documents relating to the claim, and will need to confirm that they will be available by telephone to discuss the case with the defendant or the defendant’s adviser.

The Review will be at the end of the sitting day so that if on that day the claimant and the defendant resolve the case, or agree directions, then the Court will be available to make the orders required.

It also seems, to ensure that compromise is not deterred, that local authorities will be expected to take the approach, guided by MHCLG, that signing a consent order or agreeing an order for possession where the property is unaffordable is not, in itself, a reason to find an applicant intentionally homeless.

This may encourage tenants seeking assistance from the local authority, to comply with agreeing a surrender of a tenancy. In the past, if local authority assistance was sought then tenants were often advised that they would be making themselves voluntarily homeless if they vacated before a bailiff evicted them, meaning that no assistance could be sought. Hopefully, this move will assist landlords and tenants with negotiating surrenders.

If the case is not resolved by the review date, the Judge will consider the bundle provided by the claimant and the Court file. If the claimant’s documents are in order the case will proceed to a “substantive hearing”. If the claimant’s documents are not in order the Court can be expected to dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.

What does this guidance mean?

Ultimately, it seems that the Courts are keen to avoid landlords having to rely upon possession proceedings at all costs. Given the likely backlogs, it certainly makes sense for landlords and agents to try and negotiate payment plans and to communicate with their tenants to resolve any outstanding issues. The service of notice and, subsequently, issue of proceedings, should be a very last resort.

If proceedings are issued, it appears that steps have been taken to try and resolve possession claims without the need for a hearing, with the introduction of the review date.

In theory, this could open up huge amounts of time for cases where hearings are required and could limit the backlogs insofar as possible.

Hopefully, our next blog post relating to the effect of the Coronavirus pandemic will be full of praise for the new system, but only time will tell…