Residential Possession Proceedings – Similar but not the Same

There has been a steady stream of changes to the possession process since 27^th March 2020 when the first legislation was introduced to help the Courts combat the effects of the Coronavirus.

Overall, the current situation is that notices can be served, hearings are being conducted, and bailiff appointments are occurring. However, the process is different from what it was like pre-March.

Notice Periods

For Section 21 Notices served after 29^th August 2020, you must now give six-months’ notice. For Section 8 Notices, there is a similar six-month notice period, except in the following circumstances:

The above notice periods will apply to all notices served up to and including 31^st March 2021. To reflect the above notice periods, you can now bring a claim for possession within ten months of a Section 21 Notice being served (up from six).

The Overall Arrangements

In order to navigate the new world of possession proceedings, The Master of the Rolls’ Working Group on Possession Claims has published “The Overall Arrangements”. The Overall Arrangements set out the new process to obtain possession.

In general, the changes mean that possession proceedings will be more time consuming, require more preparation, and will be more expensive.

a) Existing Claims – Re-activation (Practice Direction 55C)

Possession claims issued before 3^rd August 2020 will not be listed, re-listed, or referred to a Judge until a party files and serves a Re-activation Notice confirming that they wish the case to proceed. The notice can be served at any time until 29^th January 2021.

b) New Claims

No new claim for possession should be started without careful efforts to reach compromise. Where a Pre-Action Protocol applies it should be complied with, and compliance will be expected to be shown.

c) COVID-19 Case Marking

A defendant or claimant can request that the claim is marked to let the Court know that the claim has come about because of, or has been specifically affected by, the Coronavirus.

d) Priority Listing

The following possession claims will be treated as a priority:

(a)Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985;
(b)Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least
a.12 months’ rent or
b.9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source;
(c)Cases involving alleged squatters, illegal occupiers or persons unknown;
(d)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)
(e)Cases with allegations of fraud or deception;
(f)Cases with allegations of unlawful subletting;
(g)Cases with allegations of abandonment of the property, non-occupation or death of defendant;
(h)Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’; or
(i)Other.

The above list is not in order of priority and a claim may fall into multiple priority categories. There is currently no guidance on what “other” includes.

e) Hearings

Gone are the days of a block list with dozens of claimants and defendants crowded into a cramped Court waiting room. This has been replaced by a Review Date and then a Substantive Hearing Date.

On the Review Date a short Review Appointment will be listed by the Court. This will be conducted by a Judge on the documents and without attendance by the parties. However, the Claimant must be available on the Review Date to discuss the case with the Defendant or Duty Advisor.

If the claim is not settled on the Review Date, then after at least 28 days there will be a Substantive Hearing.

What’s Next?

The Overall Arrangements are only an initial framework and there will be unforeseen consequences. It is certain is that they will be altered and adjusted during their lifespan to respond to the changing environment.

More information

Pinney Talfourd are experts in residential property litigation and can advise you on changes to the law so you are given up to date advice.

Please do not hesitate to contact either Stephen Eccles by email or on 01708 463202 or Oliver-James Topping by email or on 01708 463227 should you wish to discuss anything further.

This article was written by Oliver-James Topping, Solicitor in the Residential Property Litigation at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October2020.