Can landlords now proceed with court action?

Residential Landlord and Tenant Update – August 2020

After a very strange few months, things are finally beginning to return to a new kind of “normal”.

If only things were that simple…

Up until a few hours ago, the stay on all possession proceedings was due to be lifted on 23 August 2020, meaning that previously submitted claims could be continued and new claims issued.

However, the government appears to have made plans to extend the stay for another month, up until 20 September 2020.

The new rules

From 23 August 2020, both new and existing possession proceedings will be subject to Practice Direction 55C, a temporary modification for part 55 possession claims. These new rules will be in force up until 28 March 2021.

The changes to the usual rules will vary depending upon which stage of the process the landlord has reached. Should there be any doubt as to which steps need to be taken, specific legal advice should be sought.

Generally speaking, for any existing claims, no case can be listed, relisted, heard or referred until one of the parties to the proceedings files and serves a written notice (a “reactivation notice”) confirming which action they wish to be taken.

Within the reactivation notice, landlords will also need to set out what knowledge they have as to the effect of the Coronavirus pandemic on their tenant and their tenant’s dependants.

If the claim relates to arrears of rent, it will also be a requirement that an updated schedule of arrears is sent along with the reactivation notice.

What do landlords need to do

It is especially important for landlords to act quickly should they have a trial listed to take place before 27 March 2021. Reactivation notices must be served at least 42 days prior to the date of the listed trial to ensure that the hearing is not vacated.

For claims where there are additional directions listed, it will also be a requirement to file a copy of the current directions order and propose new dates for compliance, taking into account the stay period.

In addition, a draft order or confirmation that new directions are not necessary will need to be provided, as well as confirmation as to whether a hearing is suitable by video or audio link. If there are any doubts as to the steps required in this eventuality, specific legal advice should be sought.

In any event, if no reactivation notice is served by 29 January 2021, the court will stay an existing possession claim.

For new claims, a reactivation notice will not be required but landlords will still need to ensure that that they are making attempts to establish the effect of the Coronavirus pandemic on their tenant and their tenant’s dependants. This information will need to be contained within a notice (“a pandemic notice”) and will be required for court proceedings.

Landlords may have information in relation to effect of Coronavirus on the tenant already, particularly if rent arrears have accrued, but if not then the landlord should enquire.

Enquiries should be made at the earliest possible stage to enable the landlord to draft a pandemic notice (before serving a notice seeking possession if one has not been served) but certainly prior to proceedings being issued.

It is unclear at present how strictly the court will enforce the new pandemic notices but, given that this is a new requirement, it is advised to err on the side of caution and to make reasonable attempts to ascertain this information to prevent any issues within the proceedings.

For traditional possession proceedings (where a hearing is standard), it is important that the landlord serves a copy of the pandemic notice upon the tenant at least 14 days prior to the hearing. They will also be required to bring 2 copies of the pandemic notice to the hearing.

For accelerated possession claims (where a hearing is not listed as standard) the pandemic notice will need to be sent along with the claim form for service.

Act now as delays are likely

Unfortunately, it is likely that the court will experience delays due to the backlog of cases resulting from the stay, particularly now it is being extended again.  Hopefully, the court will have systems in place to limit these delays insofar as possible but landlords should prepare themselves for a potentially lengthy process.

The next few weeks will be a bit of a waiting game, but in the meantime, it may be prudent for landlords to diarise 20 September 2020 as the lift of the stay and 29 January 2021 as the final date that a reactivation notice can be served for existing claims.

If landlords have served notices seeking possession on their tenants which have expired during the stay, now may be a sensible time to begin to think about next steps so that proceedings can be issued as quickly as possible after 20 September 2020.

At Lawcomm Solicitors, we have a dedicated Landlord and Tenant department who can assist with such claims on a nationwide basis.  To see our pricing list for possession work, please click here.

If you require any assistance, please do not hesitate to contact Sian Meredith on tel: 01489 864 152 or email: sian.meredith@lawcomm.co.uk or Bill Dhariwal on tel: 01489 864 117 or email: bill.dhariwal@lawcomm.co.uk.

The dates referred to above are correct at the time of publishing but may change in light of the recently announced extension of the stay.