Amy Kelly & Wesley Potterton deal with the new rules for activating stayed possession claims and giving notice of warrants of possession.

Published on 30/07/2020

Get ready for the re-start of possession proceedings from the 24th August 2020 – the new rules

The wait is over to understand how possession claims will get back on track once the automatic stay for possession proceedings ends and in short it means more work for landlords, and inevitably more delay.

Re-activation of stayed possession proceedings

Possession hearings will start again from Monday the 24th August 2020 but your stayed case will not be listed unless you comply with the new procedural requirements, including the filing and serving of a ‘reactivation notice’. The requirements are set out in the new Practice Direction 55C which comes into force on the 23rd August 2020 (https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-123-pd-update.pdf).

Technical without notice evictions by bailiffs/High Court enforcement officers have also been brought to an end as a result of other rule changes that also come into force on the 23rd August 2020. From the re-start of possession proceedings 14 days’ notice of the eviction date from both County Court Bailiffs (County Court warrant of possession) and High Court Enforcement Officers (High Court writ of possession) will now be required.  

 What do I need to do?

  1. File and Serve a ‘Reactivation Notice’
  2. Is a reactivation notice required?

You will need to file and serve a ‘reactivation notice’ for all stayed possession claims which have been issued before the 3rd August 2020 and automatically stayed.

The notice is not required if:

  • You already have a final possession order.
  • You issued the claim for possession on or after the 3rd August 2020 (there are separate requirements for these claims set out further down this article)
  1. What information must the notice include?

All stayed claims

  • All ‘reactivation notices’ must include the following information:

        2.3  A reactivation notice must—

                (a) confirm that the party filing and serving it wishes the case to be listed,              relisted, heard or referred; and

                (b) except in proceedings relating to an appeal, set out what knowledge that        party has as to the effect of the Coronavirus pandemic on the Defendant and             their dependants.

2.4 Except in proceedings relating to an appeal, where a reactivation notice is filed and served by the Claimant and the claim is based on arrears of rent, the Claimant must provide with the notice an updated rent account for the previous two years.

Where case management directions have already been given

  • Where case management directions have already been given you must also provide further information in the reactivation notice set out below:5.1 In relation to a stayed claim to which paragraph 2.1 applies and in which case management directions were made before 23 August 2020, a party filing and serving a reactivation notice must file and serve with it—

(a) a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 23 August 2020; and
(b) either—

(i) a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or
(ii) a statement in writing that no new directions are required and that an existing hearing date can be met; and

(c) a statement in writing whether the case is suitable for hearing by video or audio link.

5.2 If the other parties do not agree with any of the matters advanced under paragraph 5.1(a), (b) and (c), they must file and serve a response within 14 days of service of the reactivation notice.

  1. When do I need to file and serve the notice?

File and serve it as soon as possible

If a trial date was listed before the 27 March 2020 (when the stay was imposed on possession) this will be vacated unless the reactivation notice is filed and served at least 42 days before the hearing date.

The stay on possession proceedings comes to an end on the 23rd August 2020. If you are required to file and serve a reactivation notice, nothing is going to happen with your claim for possession until you file and serve a ‘reactivation notice’. This is because of paragraph 2.1 of the Practice Direction below:

2.1 Subject to paragraph 2.2, and unless the court directs otherwise, no stayed claim is to be—

(a) listed;
(b) relisted;
(c) heard; or
(d) referred to a judge under rule 55.15,

until one of the parties files and serves a written notice (a “reactivation notice”) confirming that they wish the case to be listed, relisted, heard or referred.

2.2  Paragraph 2.1 does not apply to a stayed claim—

(a) which was brought on or after 3 August 2020; or
(b) in which a final order for possession has been made.

Further the court must, unless it directs otherwise, give at least 21 days’ notice to the parties of any hearing listed or relisted in response to a reactivation notice. This in reality means that pre-existing trial dates may be lost if swift action is not taken, and may be lost anyway if the court backlog is significant.

The only deadline is 4pm on 29 January 2021, after which if you have not filed and served the notice your claim will be automatically stayed. You can apply to reinstate the stayed claim and the relief from sanctions test will not apply to that application.

If there is significant continuing breach of tenancy or anti-social tenancy, you may wish to include a covering letter with the reactivation notice requesting that the court directs that the matter be listed on an urgent basis and sooner than 21 days after service of the notice as a consequence of the impact the continuing behaviour is having (whether on the landlord or neighbours) although whether this will make any difference remains to be seen

  1. Additional Requirements for possession claims brought on or after 3rd August 2020 

You must serve on the Defendant(s) at least 14 days prior to the court hearing notices setting out what knowledge you have of the effect of the pandemic on the Defendant and their dependents. This will require making or attempting to make enquires of the tenant and the impact the pandemic has actually had on them – this could include relevant financial information including whether they are or remain employed, or are furloughed or otherwise, information as to health, especially mental health, and support currently being received from any third party sources. 

  •  
  • Bring to court two copies of a notice:
    • (For Social Landlords Only) confirming that you have complied with the Pre-Action Protocol for Possession Claims by Social Landlords and detailing how you have done so
    • Notice of what knowledge you have of the effect of the pandemic on the Defendant and their dependents. As above, this could include financial and personal information, and where relevant information about 3rd party agencies working with the Defendant.

 

  • If you are bringing an expired section 21 notice claim on the accelerated possession procedure you must file with the claim form for service a copy of the notice of what knowledge you have of the effect of the pandemic on the Defendant and their dependents. As above, this involves making or attempting to make actual enquiries of the tenant in relation to financial and personal circumstances.
  • What enquiries are you expected to make? The short answer is we do not know, but it is likely that Judges will expect landlords to telephone tenants, on multiple occasions if no reply is received, or otherwise contact them by email or letter. A letter could always request that the tenant contacts the landlord as a matter of urgency so the court can be furnished with this information. The more effort that is made to contact a tenant and elicit the information, the less criticism that can follow if no information can be provided as to the impact on the tenant and their household.

End to ‘without notice’ evictions

Rule changes also coming into force on the 23rd August 2020 will now require 14 days’ notice of the eviction day whether the eviction is by High Court enforcement officers (High Court writ of possession) or County Court bailiffs (County Court possession order), https://www.legislation.gov.uk/uksi/2020/747/article/16/made.

14 days’ notice is not required for ‘true’ CPR trespassers, namely persons that did not have the appropriate consent to be there in the first place (e.g. squatters) as opposed to those who technically fall within the legal definition of trespass (e.g. a former joint tenant whose tenancy was determined by the service of a Notice to Quit by the other joint tenant). It is also not required for those who occupy as excluded licensees or tenants and to whom the Protection from Eviction Act 1977 does not apply who can be evicted peaceably without a court order, unless you have decided to take legal action to evict them, when perhaps notice would be advisable.

The Court has the discretion to either dispense with the requirement for delivery of notice of an eviction or extend or shorten the length of the notice of eviction required. It would be worth seeking the Judge’s permission to reduce length of notice of eviction required in appropriate cases (perhaps in cases of severe anti-social behaviour).

In practice this rule change will mainly impact on landlords who may have considered spending extra money to apply for permission to transfer enforcement of possession to the High Court, so they can secure the services of private High Court enforcement agents and get their property back sooner. High Court enforcement agents were only required to give a tenant notice of their appointment and not the eviction date itself. They had adopted a practice of attending the property to enforce the eviction with little or no notice. County Court bailiffs have always provided notice of the date and time for the eviction. Even before the current pandemic the county court bailiffs would generally take at least 4 – 6 weeks to attend a property to enforce an eviction. The new rules should not have any real impact on this.

If Chambers Housing Team can assist you in any housing related matter, including further advice, please contact our Clerks on 02380320320 and we will be happy to help.

By social housing barristers Wesley Potterton and Amy Kelly