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Possession Claims (Stay Lifted)

As you may already be aware the stay of possession proceedings which is currently enforced is due to come to an end on Sunday (20 September 2020).

Claims will not be automatically re-listed and careful regard should be given to Practice Direction 55C which sets out the “new” temporary provisions in relation to possession proceedings.

Don’t fancy reading the whole practice direction? Please see below for a brief recap of what we know so far.

Pre- Existing Claims

As of Monday 21 September 2020 no existing claim for possession (issued prior to 3 August 2020) will be listed, relisted or referred to a Judge until a party files a “reactivation notice” confirming they wish the claim to proceed. Without this notice, the proceedings will remain stayed. The requirements for the ‘reactivation notice’ are fairly robust, in that it goes beyond simply asking a Court to relist hearings to progress cases etc.

See below link to the reactivation proforma released by the government this week which can be used to reactivate the claim. The government have confirmed that no court fee is payable to submit this notice. (https://www.gov.uk/government/publications/reactivation-notice-for-property-possession) Any claims which are not reactivated by 4pm on 29 January 2021 will be stayed indefinitely.

The notice does 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 family situation etc and clearly the more information inserted into the notice the better. If making contact by phone,  Landlords should ensure that records have kept of both the actual conversation (if contact is successful), or of any attempted calls if there is no answer. Landlords should also keep copies of any emails/letters, if written contact is made.

In existing claims where directions were made prior to 21 September 2020, the party serving the reactivation notice must propose new dates for directions or state that no new directions are required and an existing hearing date can be met (if this hasn’t already passed).

The process beyond service of the reactivation notice is still unclear although guidance suggests that all claims will be listed for a review meeting prior to being listed for a substantive hearing. In addition to the above, the claimant will be required to provide a full bundle to the court and the defendant 14 days prior to the review date. The review meeting will provide an opportunity for the claimant and defendant to reach an agreement with the assistance of a duty adviser (if required). It is not yet known whether attendance is required in person or remotely by telephone.

If the case is not resolved (and the claimant’s documents are in order) the matter will progress to a substantive hearing not less than 28 days after the review meeting. All parties will be required to attend the substantive hearing with the exception of accelerated possession claims where an order may be made without a hearing being required (provided all papers are in order).

What is known however is that as of Monday 21 September 2020 the courts will be progressing all claims where re-activation notices are filed. The courts will be overloaded and claims will not be progressing quickly, priority will be focused on the following (although like all recent announcements these are subject to change):-

  1. 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;
  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; and
  8. Cases concerning  what  was  allocated  by  an  authority  as  ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

New Claims

Whilst the government guidance makes it clear that “no new claim for possession should be started without careful efforts to reach compromise” new claims can (and will) be issued from 21 September 2020. The process for new claims is not vastly different to that for pre-existing possession claims. New enhanced information will be required though at the point of issue which will need to include (amongst other information) details of the impact of the pandemic on the defendant and dependants, and confirmation that the Pre-Action Protocol has been complied with. A copy of this information will need to be served on the defendant not less than 14 days prior to the hearing and filed with the claim form. In addition to the above, the courts have made it clear that the former period of 8 weeks between issue and hearing will no longer apply with all new claims being listed for a review hearing (see above) before being listed for a substantive hearing date. As with pre-existing claims the courts will be focusing on claims where allegations of anti-social behaviour or extreme rent arrears (at least 12 months) are raised so do not expect your claim to be dealt with expeditiously and consider using the accelerated process if you can.

If you have any further questions please contact either Emma Hindon, Jessica Tallon and Sophie Michaelides within the Property Litigation Team.

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