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Can you still get possession? Top tips for landlords

As has been broadcast widely in the news the government has been going to extraordinary lengths to enforce their message that no tenant will be evicted during these unprecedented times. The new legislation is convoluted, lengthy and ever changing. Below is a recap of the current position in relation to notice periods, possession claims and reactivation notices plus some handy tips for navigating possession claims during and after Covid-19.

From 29 August 2020 the required notices period for Section 21 was extended to a period of six months irrespective of circumstances. Notices served prior to 29 August 2020 based on the then three month period are not affected.

As previously proceedings had to be brought within six months of a section 21 notice. This six-month period has been extended so that now any proceedings need to be brought within 10 months of service of the notice. The current extended notice period will be effective until 31 March 2021, although of course this is subject to any further changes.

Section 8 (breach and other notice grounds)

The amended legislation is both complicated but the notice periods are now as follows:-

Ground Number

Ground Description

Notice Period  

1

The landlord wants to occupy the property as their permanent home

6 months

2

The property is subject to a mortgage and the mortgagee is entitled to exercise a power of sale.

6 months

3

The tenancy is a fixed term of not more than 8 months and the property was previously a holiday let.

6 months

4

The tenancy is a fixed term of not more than 12 months and the property is student accommodation let out of term.

6 months

5

The property is being used by a minister of religion and is required for another minister.

6 months

6

The landlord wants to carry out works to the property/refurbishment to the property which cannot go ahead with the tenant in possession.

6 months

7

The tenant has died.

3 months

7A

The tenant has been convicted of a serious offence in the locality of the dwelling house/ the property has been subject to a closure order.

4 weeks

7B

The Landlord has been served a notice by the Secretary of State in respect of illegal immigrants

3 months

8, 10 & 11

The tenant is in rent arrears or persistently delayed paying rent (If rent arrears are in excess of 6 months at the time of the

6 months

What about anti-social behaviour issues?

It will remain a welcome relief for landlords wishing to rely on Ground 14 that the notice period remains unchanged and therefore possession proceedings can be lodged on the same date as the notice is served. Landlords must bear in mind though that any possession proceedings lodged at the Court will automatically be stayed until the current moratorium on possession proceedings has been lifted (currently 20 September 2020- see below.)

Once the court has received the claim form (and a reactivation notice if applicable) it will fix a date for a possession hearing. The Court rules provide that a possession hearing cannot take place less than 28 days after the date of issue of the Claim Form and it is likely that following the lifting of the stay there will be a back log of cases waiting to be listed for a hearing which will mean that a hearing date may not be available for months. In the event of serious anti-social behaviour, landlords should consider making an application to abridge time so that the court lists the hearing at the earliest opportunity. In any abridgment application good evidence showing the seriousness of the breach will be needed.

Possession Claims

In a somewhat surprising government announcement released late in the afternoon on Friday 21 August 2020 the current Master of the Rolls Sir Terence Etherton (somewhat begrudgingly) confirmed that the current stay of possession proceedings which was due to be lifted on 23 August 202 would be extended for a further 4 weeks to 20 September 2020.

What does this mean in practice?

The effect of this is that as from March 2020 all possession claims (regardless of their stage pre COVID-19) will be automatically stayed except for claims against trespassers or applications for interim possession orders. Whilst the wording continues to suggest that landlords are still able to issue proceedings, these claims will not progress to a stage where a tenant risks being evicted and will be automatically stayed at the point they are received by the Court until 20 September 2020 (unless extended again).

What happens after 20 September 2020?

Once the moratorium has expired and in order to reactivate proceedings, landlords will need to file a “reactivation notice” with the Court. Without this notice, the proceedings will remain stayed. The requirements for the ‘reactivation notice’ are fairly robust, and go beyond simply asking a Court to relist a hearing to progress a case and Practice Direction 55C makes it clear that the notice must set out what knowledge that landlord has as to the effect of the Coronavirus pandemic on the tenant and their dependants. It is anticipated that this will require landlords to pro-actively make enquiries with a tenant regarding the impact the virus has had on their health, their finances, their employment, and their family situation.

Post Covid-19

The rules are ever changing (as we have already seen), therefore, it may be the case that the rules are amended again and landlords should keep a keen eye on the latest developments and seek legal advice in the event of any uncertainty. Please bear in mind that the Courts are still operating. Landlords do still have the ability to seek urgent injunctions in the face of serious anti-social behaviour, or a lack of access so gas safety checks or urgent repairs can be carried out.

Some tips for dealing with possession claims

Check your documents against the statutory requirements

If you are in any doubt as to whether you have complied with the necessary statutory requirements at the commencement of the tenancy consult a solicitor. It may be that these documents need to be re-served before service of the S.21 Notice to ensure its valid. If you are in any doubt as to whether the statutory requirements regarding the tenant’s deposit have been met return the deposit before serving the S.21 notice.

Use the prescribed form (Form 6A)

If the tenancy commenced or was renewed on or after 1 October 2015 all S.21 notices must be in the prescribed form (Form 6A). A copy can be downloaded here: https://www.gov.uk/guidance/assured-tenancy-forms#form-6a

Protect your position ahead of time

Be proactive, whilst a section 21 cannot be issued until 4 months into the tenancy, you could in the case of a 12 month AST serve a S.21 notice at 6 months to expire on the fixed term expiry date. A notice relying on one of the S.8 grounds can be issued as soon as the breach has occurred or the circumstances have changed.

 Reactivation Notices

Reactivation notices cannot be served until after the extended stay has expired (currently 20 September 2020). However, in preparation for that date, contact will need to be made with the tenants on all of live possession claims to check how they are and how any dependants have been impacted. If you make the contact by phone, do ensure that a careful attendance note is made of any actual conversation if you do successfully make contact (or of any attempted calls if there is no answer). Do also keep copies of any emails/letters, if written contact is made.

Consider making an application to abridge time to speed the process up

Once the court has received the claim form (and a reactivation notice if applicable) it will fix a date for a possession hearing. Ordinarily, pursuant to CPR 55.5 (3)(a) the first hearing date will be not less than 28 days from the date of issue of the Claim Form. It is likely however that following the lift of the stay there will be a back log of cases waiting to be listed for a hearing. In the event of serious anti-social behaviour, consider making an application to abridge time to encourage the court to list the hearing at the earliest opportunity.

Emma Hindon is a solicitor in the Property Litigation Team at Ashfords LLP

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    And don’t forget folks, while all this is happening and you are not getting your rent, you are still required to maintain the property or YOU will be taken to court by the tenant.

    It sounds more like a Beano storyline to me

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