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Simon Painter
Partner

Aoife Murphy
Legal Director

Lisa Faulkner
Professional Support Lawyer
06 October 2020

What are the new notice periods to evict and how have possession proceedings changed?

New notice periods

On 28 August 2020 the government introduced new measures to extend the notice periods that landlords are required to give their tenants before commencing possession proceedings. The new rules apply to any notices served after 29 August 2020 meaning that any notice served between 25 March and 28 August 2020 will still be subject to the notice periods in place at the date of service (in most cases this is three months).

These new notice periods will be in place in England for all notices given up to and including 31 March 2021.

Section 21 notices: Notices given under section 21 of the Housing Act 1988 were changed from a notice period of two months to three months for notices given after 25 March 2020 (pursuant to Schedule 29 of the Coronavirus Act). Now the notice period for notices served after 29 August 2020 is six months. Further, the new rules state that proceedings can be issued up to ten months after they have been served whereas previously this was six months.

Section 8 notices: The position here is more complicated and the notice period varies depending on which ground you are claiming possession under. The most common grounds to claim are for rent arrears and the notice period under grounds 8, 10 and 11 is dependent on the time over which the arrears have accrued:

  • where the tenant is in arrears of six months’ rent or more, the notice period is four weeks; and
  • where the tenant is in arrears of less than six months’ rent, the notice period is six months.

Many landlords may now be minded to wait for six months’ arrears to accrue to take advantage of the shorter notice period. Similarly, a well advised tenant will ensure that any arrears are always kept to less than six months.

It is noted that the notice period for rent arrears has in some cases become harsher than pre-pandemic timings in an effort to assist landlords with persistent non-payers.

Other grounds under which the period has changed are grounds 7A and 14 respectively dealing with tenants being convicted of serious offences or anti-social behaviour, or causing nuisance or annoyance. Previously the Coronavirus Act 2020 had imposed a three month notice period for notices relying on these grounds but now the new rules suspended this effect.

Unlike some other grounds there are no new notice periods for grounds 7A and 14 and so the notice periods revert to their pre-COVID-19 lengths.

For ground 7A, the notice period is one month.

For ground 14, no notice period is applied and proceedings can be issued from the date of service of the notice.

For the full list of grounds and their notice periods, do refer to Section 3 (6) (d) of the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020.

How have possession proceedings changed?

All possession proceedings were originally stayed due to the COVID-19 pandemic under CPR 51Z. This was effective from 27 March 2020 for 90 days. CPR 55.29 was then introduced and all proceedings and enforcements by writ or warrant under CPR 55 were stayed until 23 August 2020. This was then extended and all proceedings were stayed until 20 September 2020.

The new Practice Direction, PD 55C, came into force on 23 August 2020 and ceases to have effect on 28 March 2021. This and the overall arrangements document (overall arrangements) written by the Working Group on Possession Proceedings sets out how possession claims are dealt with post 20 September 2020 and is set to dramatically change the landscape in possession proceedings.

As regards how to run a possession case going forward, different rules will apply depending on what type of claim you have.

A ‘stayed claim’ means a claim which was brought on or before 19 September 2020 (including an appeal from a decision in such a claim). A ‘new claim’ means a claim brought after 19 September 2020.

For stayed claims:

  • any claim that is stayed will not be listed, relisted or heard unless and until a party files a ‘reactivation notice’. Do note the requirement for a reactivation notice does not apply to stayed claims brought on or after 3 August 2020 or stayed claims in which a final possession order has been made;
  • in all cases except for appeals the reactivation notice must set out what, if any, knowledge the party serving the notice has to the effect of COVID-19 on the defendant to the claim and any of their dependants;
  • if there are rent arrears, an updated rent account covering the previous two years must be provided;
  • if directions have been made prior to 20 September 2020, the following must be sent with the reactivation notice:
    • a copy of the last directions;
    • a draft order for new directions with new hearing date or confirmation that the current hearing date can be met; and
    • a statement confirming whether or not the case is suitable for a remote hearing.
  • there is no fee for filing a reactivation notice; and
  • if a reactivation notice is not served by 29 January 2021, the claim will automatically be stayed. Do note this is not a sanction.

For ‘new’ claims and stayed claims brought on or after 3 August 2020:

  • PD 55C states that the claimant using the accelerated procedure must file with the claim form, and claimants in all cases must serve before and produce at the hearing, a notice setting out the knowledge that they have as to the effect of COVID-19 on the defendant and their dependants. Further guidance produced since PD55C states that details of any affect COVID-19 has had on the other party must be sent to the court in all cases as soon as possible: and
  • social landlords will need to confirm that they have complied with the pre-action protocol for possession claims by Social Landlords.

The requirement for the court to fix a hearing date within eight weeks of issue has been removed for any type of claim.

There is an obvious increase in activity at the courts now the stay has expired and whilst there are rules in the overall arrangements as to how long a case will take to get to a final hearing, there are many hurdles and new processes to be tried out.

The key aims of the overall arrangements are to reduce volume in the system by enabling earlier advice and facilitating settlement. They also aim to take into account the effect of COVID-19 on all parties. There is, in order to facilitate this further, the introduction of a scheme of prioritisation for listing to be used by the judiciary; (anti-social behaviour and extreme rent arrears cases first), further guidance for possession claims from the Court Service, the Ministry of Housing and the Financial Conduct Authority. We are told there will be greater provision of legal aid duty scheme legal advice and the introduction of an independent mediation / facilitated negotiation for possession claims.

The key points in the overall arrangements:

  • confirms what is set out in PD55C – that claims brought before 3 August 2020 will not be listed, relisted or referred to a judge until a party files and serves a ‘reactivation notice’ confirming that they wish the case to proceed;
  • parties will be offered a physical hearing. This is subject to whether contingency arrangements need to be implemented, dealing with accelerated possession claims and if the parties (and the court) agree that a hearing should be by telephone or video;
  • criteria for prioritising cases and the means to ‘mark’ a file as being one in which the defendant or the claimant faces particular hardship as a result of COVID-19. This will assist judges in deciding how to list cases. (Covid marking). You can request for a case to be ‘COVID-19 case marked’ at any time and in any form, but must include details such as the relevant hardship due to COVID-19;
  • no specific distinction made between residential and commercial cases;
  • unless there are existing case management directions that provide otherwise’ in all cases (stayed and new, but subject to a Re-activation notice in stayed cases) there will be a review date – this is not a hearing but a bundle must be provide by the claimant 14 days prior;
  • there will then be a substantive hearing (15 minutes) within 28 days of the review date;
  • accelerated possession claims will not have a review date but will be referred to judges ‘at a manageable frequency’; and
  • pilot scheme to facilitate mediation will be operating.

There are questions as to how much information will be needed about the defendant’s circumstances and how they have been effected by COVID-19? Will there be an issue if the claimant has no knowledge at all of the defendant’s circumstances?

Only time will tell what the effect of the frontloading of information will be and how the judges will react to various people’s circumstances. It is unknown as to how lenient or not a judge will be and whether the right balance will be achieved between a landlord’s and tenant’s needs at this incredibly tricky time.

For further information, please contact Simon Painter or Aoife Murphy.

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