from 21 September 2020 Marina Sergides & Liz Davies, Garden - - PowerPoint PPT Presentation

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Possession Proceedings & Notice periods from 21 September 2020

Marina Sergides & Liz Davies, Garden Court Chambers 16 September 2020

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It’s been a long road…

• On 27.3.2020 general stay until 25.6.2020 (brought about by way of Practice Direction 51Z).

Stay extended on 5.6.2020 to 23.8.2020 and then again to 20.9.20.

• Working Group appointed by Master of the Rolls (as Head of Civil Justice), with cross sector
• membership. Representative bodies, Judiciary, Court Service and Gov agencies.
• Aim: (a) reducing volume in the system by (1) enabling earlier advice and (2) increasing

settlement and (b) considering the impact of the pandemic on the parties.

• There is an accrued demand on the system from the stay, forthcoming major demand caused

by the economic consequences of the pandemic and reduced physical court capacity due to social distancing.

• Court closures, although not a ‘relevant’ reason expressed, have clearly exacerbated the

problem.

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It’s life Jim but not how we know it. The Overall arrangements:

• The response is to difficulties identified:
• Change the notice periods (see Liz D paper)
• Introduce PD 55C (not part of the WG)
• Case management and listing changes (The “Overall Arrangements”, part of WG, now

published).

• Other than PD 55C (in force until 28.3.2021) and r.83A, no other changes to the CPR rules. The
• verall arrangements that will be discussed are entirely listing matters.

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Continue…

• There will be no change to primary legislation, so all changes have had to occur within the the

limits imposed by law. No indication that Ground 8 or s21 will be suspended. CPR 3 doing a lot of the ‘heavy lifting’.

• There has been some increased funding by the MoJ and MHCLG, esp Facilitated Negotiation (to

be discussed further below).

• Changes to the HPCDS contracts to now provide for Duty Advice (DA) at Court on two occasions:

RD and SH.

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Stayed Claims: PD 55C and Reactivation Notices

• All proceeding are stayed until 20.9.20 (r.55.29). All claims brought before 19.9.2020 are

‘stayed claims’ (para 1.3).

• PD 55C in force from 23.8.2020 but relates to a period beginning 20.9.20 and ends on

28.3.2021. It applies to all possession claims including accelerated possession proceedings.

• Cases started before 3.8.2020 will not be listed/referred to a Judge unless ‘Reactivation

Notice’ (RN) served (para 2.2). That is ‘all’ stayed claims (including appeals). BUT RN needed where: (a) claim brought after 3.8.20 or (b) final possession order has been made (i.e LL at warrant stage).

• As writing, a RN has now been published

(https://www.gov.uk/government/publications/reactivation-notice-for-property-possession)

• (i) that the party filing and serving it wishes the case to be listed, relisted or heard (para

2.3) and;

• (ii) what knowledge the serving party has as to the effect of the Coronavirus pandemic on

the tenant and their dependants (para 2.3).

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Continue…

(iii) Unless proceedings relate to an appeal, if claim relates to rent arrears, it must provide an update rent account for previous two years (para 2.4). (iv) Where there were previous directions, party must also file and serve copy of last directions order and new dates for compliance and any new directions or that no new directions are required and hearing date can be met (para 5.1).

• If other party does not agree with the proposed directions, they can serve a response within 14

days (para 5.2). To give effect to para 5.2, the Court will/should not approve any directions within 14 days of receiving the RN.

• Either party can serve a RN(LL or T) but it must be ‘filed and served’ (para 2.1).

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Continue…

• Court must give ‘at least’ 21 days notice to parties of “any hearing” in response to RN (para

3.1).

• What is “the hearing” that is listed and referred to in the PD?
• Starting point is that it will be a RD (see para 36, 37 and 38 of OA)
• However, where directions are agreed, this could be ‘hearing’ consistent with the directions

(para 38 of OA)

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Potential issues

• Is an RD always the ‘hearing’ listed after 21 days?
• What happens when the parties do not agree directions (para 5 PD 55c)? What is

the “hearing” that is listed 21 days after the RN is issued (para 3.1) in these circumstances? Are they to be referred to a RD (paragraph 36 of the OA)? If so, that goes against the purposes of the RD (para 52 OA) which is not to resolve cases.

• Is it any hearing the parties ask for? (para 2.1 of PD 55C sets out options. The

difficulty with this is: (a) the RN itself does not ask the parties to specify what hearing they want and (b) para 36 to 39 of the OA require the case to be listed at a RN unless directions state otherwise.

• Arguably, it isn’t sensible to list is as SH because the parties would have already
• vercome the obstacles set out in r.55.8 applies.
• Perhaps the rules are purposely broad and flexible.

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Continue..

• Is a RN Served after 23.8.2020 valid?

PD 55C is in force from 23.8.2020 and generally claims issued before 3.8.2020 require RN. The OA seen as of 14.9.20 made it clear that Courts will, by 21 September, issue RNs lodged but not issued because of the stay. The OA as of 15.9.20 did not adopt this wording. In summary, it is understood that a RN served before 20.9.20 cannot be valid as it is a step taken in the proceedings. BUT: Ct will do nothing on it until Monday 21 September when the stay is lifted.

• Directions before the stay, Dawn Meats (UK) [2018] EWCA Civ 2212

Authority that a stay applies to all steps in proceedings. During the duration of a stay, no steps in the action, by either side, are required or permitted, and when the stay is lifted or upon its expiry, the position as between the parties should be the same as it was at the moment that it was imposed. When the current stay is lifted, are the parties not back in the position they were the moment the stay was imposed – do the directions not merely start from the point that they were frozen? Or, as PD 55C requires, are the parties to try and agree fresh directions. In practice, this is an issue likely to resolve itself.

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What do Landlords have to bring to “a hearing”?

• In any claim brought after 3.8.2020, C to bring to the hearing and 14 days before the

hearing (para 6.1.(b)), two copies of notice: (a) confirming complied with PAP (were applicable) and how (para 6.1 (a) (i)); and (b) set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants (para 6.1 (a) (ii))

• These ‘notices’ have not been seen. Without a prescribed checklist form, not clear how this

would be provided. It is understood that ‘template documents’ will be out by 18 September 2020.

• In any claim brought after 3.8.2020 in respect of Acceleration Possession Proceedings

(Section II of Part 55), C must file with the Claim form a notice setting out what knowledge that party and their dependents has been affected by Covid (para 6.2). There is a new N5B Form (since 11.9.2020) but this doesn’t ask for information about covid. Again, it is understood that the new ‘template documents’ will be out by 18 September but what about N5B claims issued before this time (and stayed)?.

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Priority listing

• ASB
• Extreme alleged rent arrears accrued ((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)

• Squatters, illegal occupiers or persons unknown
• 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).

• Allegations of fraud or deception.
• Allegations of unlawful subletting.
• Allegations of abandonment of the property, non-occupation or death of defendant.
• Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically

needed by the authority for reallocation as ‘temporary accommodation’.

• Other circumstances may warrant priority, and further amplification of this guideline may be published.
• Subject to the above, priority will be given to claims issued before the stay in March 2020.

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Covid -19 Marked

• Court will give a case a ‘Covid -19’ marking if receives such info:
• Covid -19 info required when a RN is served (PD 55C para 2.3) – existing claims.
• Covid – 19 info is required in “notice” when a new claim is brought or a claim after

3.8.2020 either

• Any tenant (at any stage and by any means) can request that the claim is ‘Covid -19 marked’.

Not entirely clear how this will work in practice or what will prompt a Defendant to provide this information other than the information given to D upon receipt of the RD.

• The current Defence forms do not refer to ‘covid-19’ info from D, neither does PD

55C.

• The RN for tenants allows for this information – but not all tenants will want to

serve a RN.

• A tenant may be asked for this info by the DA at the RD but recorded where?
• A tenant may be asked by the Judge at the SH but it will then be too late for

Facilitated Negotiation.

• D will be told (upon receiving RN) that they can make a short statement about

their circumstances if they are unable to draft a defence.

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Covid -19 Case Marking

Purpose?

• Highlights settlement suitability.
• Some Social Landlord have agreed to give special consideration to such cases.
• Will draw the C’s mind to D’s difficulties.
• Assist Court in respect of listing or the exercise of its discretion in decision making.
• Assist in monitoring.

What has to be shown?

• C or D can request that the case is covid marked.
• Neither C or D can simply ‘claim’ that they have been affected by covid – must provide details of

precisely how and, if there are arrears, proposals as to how to repay.

• E.g – details of hardship/furlough info/shielding/ability to earn during covid etc.

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The Review Date (‘RD’)

What are R dates (RD) ?

• RD are not hearings (as initially proposed) but ‘appointments’. This will be conducted by a

Judge on the documents and without attendance by the parties. The Review is for 5 minutes. No court fee will be payable in relation to a Review or any order made on the Review Date.

• They exist to (a) allow tenants to obtain early advice (b) encourage settlement and (c ) ensure

that C has met all the requirements in bringing a claim. In some instances, it is a gateway to facilitated negotiation.

• There will be a DA at the RD to assist any Defendant who ‘takes up the offer’.
• It is not entirely clear how the tenant will make contact with the DA on the RD – the system

will largely depend on the court and DA scheme.

• HMCTS will publish guidance for Cs and Ds to be given with the RD and SH notice with a

particular emphasis on availability of advice and need to explore settlement.

• C and Ds will have their own notices (also sent out with the RD and SH notices) with different

key points emphasised.

• No Possession Orders to be made as we understand it. Although this is not in the PD 55C or

OA.

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How will it work?

14 days before the date listed as the RD the claimant will be required:

• to provide to the Court an electronic bundle (with a paper bundle allowed as an alternative).
• to confirm to the Court that a paper bundle had been provided to the defendant (with an

electronic copy where the defendant is able to receive that) and that the bundle includes all required material, specifically including enhanced information about the defendant now required.

• to confirm to the Court that the claimant will be available during the RD to discuss the case

(by telephone would be sufficient) with the defendant or a duty scheme (or other) adviser.

• IF at the RD directions or an order is agreed between the parties, the order will be passed up

to the Judge via the usher. The parties to not appear before the Judge.

• It is intended that there should be a dedicated possessions email address at each court centre

to facilitate information and document flow.

• DA will be giving advice on RD on the same days that they are advising on SH (good luck!).

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Cont…

• If the case is not resolved by agreement, the Judge will consider the bundle provided by the

claimant and the Court file. If the claimant’s documents are in order the case will proceed to a Substantive Hearing 28 days later. If the claimant’s documents are not in order the Court can be expected to dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.

• This appears to be the only ‘sanction’ identified. NO possession orders will be made

[?!] – to be monitored carefully as not in OA or PD55C.

• LAs will be expected to take the approach that signing a consent order or agreeing an order

for possession, in itself, does not mean a tenant or borrower should be found intentionally

• homeless. No major difference to the current position and no further guidance on this point

has been seen – some guidance expected from the Ministry of Housing.

• Many tenants will be signed up on full certificates after the RD– allowing work to be

undertaken before the SH. Others will not and DA will not be able to undertake work during this period.

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Facilitated Negotiator (Mediation): A pilot

• Available from 20 October 2020
• Not compulsory.
• Non means tested.
• At RD a DA forms the professional opinion that the case has a reasonable chance of being

compromised but cannot be negotiation on the Review Date itself and parties agree with participate within 7 days after RD.

• DA may only refer a set limit of cases.
• Facilitated mediation to last for one hour.
• What happens in the facilitated negotiation is confidential.
• Priority will be given to cases that are Covid-19 Case Marked or otherwise appear to be a direct

consequence of the pandemic.

• If agreement reached, the signed agreed order will be provided by the independent

professional to the Court no later than 10 days after the referral and SH vacated.

• No court fee is payable on an agreed order resulting from the facilitated negotiation.
• There will be monitoring and evaluation.
• Funded by Ministry of Housing and Ministry of Justice.
• The facilitated negotiators will have some limited training and will, themselves, be DA.

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Substantive Hearings (‘SH’)

• It is not clear at this stage when the SH will be listed and different courts will adopt a

different practice. Generally, however, it is likely that the SH will be fixed at the RD.

• SH should be listed 28 days after the RD (this is a listing matter, not within the CPR).
• Parties will be offered a physical hearing, subject to 3 exceptions: (a) contingency

arrangements introduced (b) Accelerated Possession Claims and (c ) parties agree that the hearing should be be phone/video link (subject to courts approval). (Para 15 OA).

• Where a party is at a court centre, a legal representative may appear for that party either

at court or (where facilities allow) by video link. There will still be a Duty Advisor.

• Hearings will be listed for 15 min to allow for extra covid safety procedures.

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S hearings cont…

• DJ or DDJ who sit extensively at the particular court centre will be used. A further 200

DDJ have been assembled to assist. Judges will have special training.

• Parties may or may not have got through the ‘mediation’ stage.
• OA para 63 does not mirror r.55.8 still, although r.55.8 still applies:

1)… the court may – (a) decide the claim; or (b) give case management directions. (2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.

• It can be expected that the question of adjournment will be considered, without the need

for an application to adjourn, in any case where (a) there is no sign that advice has yet been made available to the defendant and (b) the consequences of the order may be serious in the context of the pandemic.

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Accelerated Possession Claims (APC)

As per usual save for:

• IF issued before 3 August 2020, will require a Reactivation Notice.
• Subject to the same priorities.
• APCs to be referred to a Judge at manageable frequency and will be considered where SH slots

are vacated.

• Where the parties agree or there is no objection, the Judge to whom an Accelerated

Possession Claim has been referred for consideration may direct that a RD be listed to enable the Defendant to receive duty scheme advice and assistance, and also (where appropriate) to allow mediation/independent facilitated negotiation under the proposed pilot (para 67 (e ) OA).

• On consideration, Judge may direct to a SH (para 68 OA).

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Guidance still to come

• Claims by mortgage lenders are subject to regulatory or voluntary schemes under

which, with appropriate exceptions for priority cases, claims are postponed to 30 October 2020. The FCA has published further guidance on 14 September 2020.

• The National Residential Landlords Association will publish a “Pre-Action Plan:

Managing arrears and avoiding possession claims” by 18 September 2020. This will set out 9 “golden rules” and will also set out 5 steps to take before notice is issued (including under s21 and s8, ground 8).

• The Ministry of Housing will publish by 18 September 2020 four sets of

Guidance for private landlords, social housing landlords, tenants of private landlords and tenants of social housing landlords. The Guidance encourages advice, discussion and compromise, with court proceedings as a last resort.

• HMCTS will publish guidance, with a particular emphasis on the specific

availability of advice and the importance of exploring settlement, as follows:

• (a) within notices of RD and SH
• (b) within “key points” leaflets for claimants and defendants respectively.

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CPR 83A Warrants

• PD 55C does not apply to ‘final orders’ (whatever that means?).
• Notice of eviction of 14 days now required in County Court and High Court.
• New form makes clear (a) the date of eviction and (b) right to apply to suspend.
• The Ministry of Housing will provide guidance for bailiffs to ensure that no enforcement of

possession orders will proceed (a) where local lockdown measures are in place to protect public health and (b) other than in the most serious cases), over the Christmas period. The same approach is to be expected of enforcement officers.

• Query whether we should now have DA in the High Court.

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Notice periods from 29 August 2020

Previously Coronavirus Act 2020 Schedule 29 amended:

• Protection from Eviction Act 1977;
• Rent Act 1977;
• s.83 Housing Act 1985;
• s107D Housing Act 1985;
• s.8 Housing Act 1988;
• s.21 Housing Act 1988;
• s.128 Housing Act 1996; and
• s.143E Housing Act 1996

to provide for three month notice periods from 26 March 2020 & new prescribed forms were issued.

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Notice periods from 29 August 2020

From 29 August 2020:

• Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment)

(England) Regulations 2020, SI 2020/914 published on 28 August 2020 modify Schedule 29 and the relevant Acts.

• Modification to Schedule 29 Coronavirus Act 2020: suspends those provisions requiring three

month notice periods for anti-social behaviour: s.84 & Ground 2, Schedule 2 HA 1985; Grounds 7A & 14 HA 1988 (para 2);

• Amends notice periods (para 3);
• Provides for new prescribed forms (para 3);
• Transitional: applies to notices served on or after 29 August 2020 until 31 March 2021 (para

4);

• Jurisdiction: England only.

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Notice periods from 29 August 2020

Section 21 notices:

• S.21(1)(b), (4)(a) and (4E)(b) amended so as to provide for six month notice periods;
• S.21(4D) and (4E) amended so that claims must be issued within ten months of service of the

notice, or four months from the expiry of the notice (if notice period longer than six months).

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Notice periods from 29 August 2020

Assured tenancies Housing Act 1988, s8 amended so that:

• 6 month notice periods for Grounds 1 (landlord returning to occupation), 2 (mortgage

requires possession), 3 (8 month tenancy of property previously let as holiday let), 4 (previous student let), 5 (required for occupation by minister for religion), 6 (vacant possession required for demolition or reconstruction), 9 (suitable alternative accommodation), 12 (breach of tenancy), 13 (deterioration of condition due to waste or neglect), 15 (condition of furniture deteriorated due to waste or neglect) or 16 (let in course of employment, Schedule 2;

• 6 month notice periods for Grounds 8 (eight weeks’ arrears at date of service of notice &

hearing), 10 (rent arrears at date of notice & hearing) and 11 (persistent delay in paying rent) where arrears are less than six months at the time of service of notice;

• 3 month notice periods for Grounds 7 (tenancy devolved after tenant’s death & no succession)

& 7B (no right to rent);

• Cont’d…

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Notice periods from 29 August 2020

Assured tenancies Housing Act 1988, s8 amended so that

• 4 week notice period for Grounds 8, 10 or 11 and arrears six months’ or more at date of service
• f notice;
• 2 week notice period for Grounds 14A (one partner left because of domestic violence), 14ZA

(conviction for riot) or 17 (tenancy induced by false statement). Note that if a notice relies on more than one ground, the longest notice period relevant to one of those grounds must be given.

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Notice periods from 29 August 2020

Secure tenancies Housing Act 1985, s83 amended in relation to England so that

• 6 months’ notice for Ground 1 (rent arrears) where less than 6 months’ rent is unpaid at date of

service of notice;

• 6 months’ notice for all other Grounds at Schedule 2 except:
• 4 weeks’ notice for:
• Ground 1 (rent arrears) where at least 6 months’ rent is unpaid at date of service of notice;
• Grounds 2ZA (conviction of indictable offence), 2A (domestic violence) or 5 (false statement

inducing grant of tenancy).

• Note that if any of the 4 week grounds are specified in the notice, period is 4 weeks.

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Notice periods from 29 August 2020

Rent Act 1977 tenancies, s.5 Protection from Eviction Act 1977 amended in relation to England so that:

• 6 months’ notice period for all Cases at Schedule 15 including Case 2 (rent arrears) where six

months’ or less arrears at date of service of notice;

• 3 months’ notice for Case 10A (no right to rent);
• 4 weeks’ notice for Case 2 (rent arrears) where more than 6 months’ rent unpaid at date of

service of notice;

• Note that the notice need only provide the lower period where different Cases specified.

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Notice periods from 29 August 2020

Flexible tenancies Housing Act 1985 s 107D(4) amended so that:

• 6 months’ notice that possession will be required at end of tenancy.

Introductory tenancies Housing Act 1996 s 128 amended in relation to England so that:

• 6 months’ notice that possession will be required
• 4 weeks’ notice where the landlord’s reason, specified in the notice, is “an ASB reason for applying for

possession” whether or not other reasons specified. “ASB reason” means those at s.84A(3) – (7) or Grounds 2, 2ZA and 2A Schedule 2 Housing Act 1985. Demoted tenancies Housing Act 1996 s.143E(3) amended in relation to England so that:

• 6 months’ notice that possession will be required
• 4 weeks’ notice where the landlord’s reason, specified in the notice, is “an ASB reason for applying for

possession” whether or not other reasons specified. “ASB reason” means those at s.84A(3) – (7) or Grounds 2, 2ZA and 2A Schedule 2 Housing Act 1985.

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Notice periods from 29 August 2020

• Prescribed forms must provide the correct details for notice.
• New prescribed Form 6A (s.21): https://www.gov.uk/guidance/assured-tenancy-

forms#form-6a.

• New prescribed Form 3 (assured tenancies): https://www.gov.uk/guidance/assured-tenancy-

forms#form-3.

• New prescribed secure tenancy forms: https://www.gov.uk/guidance/secure-tenancy-forms

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Section 21 notices

If served on or before 25 March 2020:

• 2 months’ notice
• Claim for possession had to be issued within 6 months of service;
• If issued & not determined by 26 March 2020, will have been stayed;
• Only claims relying on 2 month notices not yet issued would have to be in relation to notices

served 21 – 25 March and issued by 21 – 25 September. If served from 26 March – 28 August 2020:

• 3 months’ notice
• Claim for possession had to be issued within 6 months of service;
• If issued from 26 July 2020, will have been stayed;
• If not yet issued, notice served on 26 March will have to be issued by 26 September (etc).

If served on or after 29 August 2020:

• 6 months’ notice;
• Issue up to 10 months from service.

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Who might be before the Courts?

• Existing claims re-activated;
• Issued claims relying on previous notices (NB s.8 (assured tenancies) & s.83 (secure

tenancies) notice are valid for a year;

• New claims where shorter notice periods;
• Licensees only entitled to notice to quit or to reasonable notice under s.5 Protection from

Eviction Act 1977l

• Squatters, unauthorised occupiers etc.

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Government guidance

Coronavirus (Covid-19) Guidance for Landlords and Tenants, August 2020, MHCLG https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/913299/Landlord_and_Tenant_Guidance_August_update.pdf

• Intro: “We continue to strongly advise landlords not to serve new notices seeking possession

during this challenging time without a very good reason.”

• Para 1.8 – 1.10 guidance on notice periods, previous notices & validity;
• Para 1.13 guidance on licence;
• Para 1.17 – 1.20 guidance on mediation;
• Chapter 2 guidance on Court action.

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Government announcement 10 Sept 2020

https://www.gov.uk/government/news/government-sets-out-comprehensive-support-for- renters-this-winter

• Eviction will not be enforced in local lockdown areas;
• Truce on enforcement in England & Wales in the run up to and over Christmas except in the

most serious circumstances such as cases involving ASB or domestic abuse;

• Guidance will be issued to bailiffs that they should not enforce possession orders in the weeks
• f Christmas;
• £180 million for discretionary housing payments.

Thank you

020 7993 7600 info@gclaw.co.uk @gardencourtlaw