Latest developments on possession proceedings and Covid-19

For landlord and tenant solicitors the next important date in the diary is the 23 August 2020. That’s when the new practice direction 55C comes into force. The practice direction means the end of the current stay on possession proceedings. The practice direction 55C also effects possession proceedings that are currently stayed and the commencement of new possession proceedings. In this blog we look at what the new practice direction 55C will mean for landlord and tenants and possession proceedings.

Landlord and tenant solicitors

For advice on possession proceedings or if you have questions about landlord and tenant law and your rights then call the landlord and tenant team at OTS Solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conferencing, Skype or telephone.  

What does practice direction 55C mean for possession proceedings?

As part of its Covid-19 related legislation, the government introduced a stay on court possession proceedings and enforcement action until the 23 August 2020. Practice direction 55C has now been published and it modifies the previous protection for tenants but it is an interim measure.

The practice direction will govern possession proceedings from the 23 August 2020 until the 28 March 2021.

 The practice direction applies to:

  • Stayed possession proceedings or claims brought on or before the 22 August 2020 and

  • New possession proceedings or claims commenced after the 22 August 2020.

The practice direction rules are different depending on whether the possession application is a stayed court application (on hold at court because of Covid-19) or a new possession claim brought by a landlord on or after the 23 August 2020.

Possession proceedings that are stayed at court and reactivation notices

If a stayed possession claim was started at court before the 3 August 2020 then different rules are applied in comparison to possession proceedings brought between the 3 August and the 22 August 2020.

Landlord and tenant solicitors say that it is therefore best to check the date of the possession proceedings and take legal advice if you are not sure of the new procedures for possession or your rights as a tenant under a tenancy agreement or under the new practice direction. 

If stayed possession proceedings were commenced by a landlord before the 3 August 2020 and a final possession order has not been made then a reactivation notice is required under practice direction 55C to progress or to reactivate the possession proceedings.

For possession proceedings:

  • Started between the 3 August 2020 and the 22 August 2020 or

  • Stayed possession claims in which a final possession order has been made

Then the practice direction says that a reactivation notice is not required.

What is a reactivation notice in possession proceedings?

Practice direction 55C says that unless the court directs otherwise no stayed possession claim started before the 3 August 2020, where a final possession order has not been made, can be progressed unless there is a reactivation notice filed at court and served on the defendant tenant. That means the stayed possession proceedings can't be listed for a court hearing, be the subject of a court hearing or referred to a judge until one of the parties to the possession proceedings files and serves what is referred to in practice direction 55C as a reactivation notice confirming that they wish the possession proceedings to be listed, relisted, heard or referred to a judge.

The reactivation notice must:

  • Confirm that the landlord or the tenant who is a party to the possession proceedings wants the possession application to be listed, relisted, heard or referred to a judge

  • Detail what knowledge the person seeking the reactivation of the possession proceedings has about the effect of Covid-19 on the defendant to the possession claim (the tenant) and the tenant’s dependants. This requirement doesn’t apply if the court proceedings are an appeal against an order

  • If the landlord is reactivating stayed possession proceedings started because of arrears of rent, the claimant landlord must provide with the reactivation notice an updated rent account for the previous two years. This requirement does not apply to possession proceedings relating to an appeal

  • If case management directions about the possession proceedings were made before the 23 August 2020 the reactivation notice must include a  copy of the last directions order, new dates for compliance with directions taking into account the stay in proceedings before the 23 August 2020 and

either a draft order setting out the court directions needed or saying that no additional court directions are needed and the case can proceed with the existing hearing date and if the hearing can proceed remotely by video link or not. 

If the person responding to the reactivation notice doesn’t agree with what is said they can file a response but there is a time limit of fourteen days to do so.

The practice direction 55C says that unless the court directs otherwise, the court should give at least twenty one days’ notice of any hearing listed or relisted in response to a reactivation notice.

What happens if a reactivation notice isn’t filed at court or served?

If the practice direction requires the filing and service of a reactivation notice but the required notice isn’t filed and served in accordance with the practice direction 55C before the 29 January 2021 then the possession claim will be automatically stayed. A party to the possession claim can apply to court to lift or remove the stay.

New possession proceedings and stayed possession claims started on or after the 3 August 2020

If possession proceedings were started or stayed on or after the 3 August 2020, the claimant or landlord has to:

  • Serve on the defendant (the tenant) fourteen days before the court hearing (and bring to the hearing two copies of the notice) a notice setting out what knowledge they have as to the effect of Covid-19 on the defendant tenant and their dependants

  • In accelerated possession claims the claimant landlord must file with the possession claim form a notice setting out what knowledge they have about the effect of Covid-19 on the defendant tenant and their dependants.

Notices and the effect of Covid-19 on defendant tenants

As a landlord you may question how you are expected to complete a reactivation notice setting out the effect of Covid-19 on the defendant tenant and the tenant’s dependants. If you are an accidental landlord renting out one property you may know your tenant well but many London buy to let landlords have an extensive buy to let property portfolio so don’t know as much about their tenant’s personal and financial circumstances.

Whilst there is a requirement in the practice direction 55C to file and serve a reactivation notice there is no obligation imposed on a landlord to investigate and find out about the tenant’s circumstances because of Covid-19. All the reactivation notice requires a claimant or landlord to do is to set out to the court what knowledge they do have as to the effect of Covid-19 on the defendant and their dependants.

If possession proceedings are started under section 21 or on the basis of rent arrears practice direction 55C does not give discretion to the court to refuse possession in possession proceedings brought under section 21 or rent arrears claims. Therefore whilst the practice direction requires the landlord to inform the court of what knowledge they have as to the effect of the global Covid-19 pandemic upon the defendant tenant and the tenant’s dependants the practice direction 55C doesn’t say how the information in the reactivation notice should be used by the judge but just sets out the information that should be given to the judge hearing the possession claim.

Landlord and tenant solicitors say that it is best that if a landlord does try to engage their tenant and make enquiries about the impact of Covid-19 on the tenant and their dependants that records are kept of the attempts made and information provided and what attempts were made to reach any compromise solution.

Landlord and tenant solicitors anticipate that additional guidance will be published to encourage landlords and tenants to work together and find solutions that avoid repossession where possible.

The practice direction says that bailiffs will be required to provide the tenant with notice of the eviction date and the notice should include information about where the tenant can go to for advice and how the tenant can apply to suspend the eviction.

If you are a landlord or tenant and you are confused or concerned about how practice direction 55C may affect you it is best to get expert legal advice from a landlord and tenant solicitor. 

Online Landlord and tenant solicitors

For advice on the latest legal developments on possession proceedings or if you are unsure of your rights as either a landlord or tenant or have questions about landlord and tenant law call the landlord and tenant team at OTS Solicitors  on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conferencing, Skype or by telephone. 

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