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Bray & Bray Solicitors, discusses the impact of COVID-19 on possession claims in the private sector and the changes to the possession claim process as a result.

Due to the COVID-19 outbreak, tenants in rented residential properties have been protected from eviction since 26 March 2020. Initially, this was intended to last for three months. However, it has consistently been extended and on 10 March 2021, the government extended the ban once more to 31 May 2021. Whilst some may say this provides added security to tenants already experiencing sleepless nights from the rent arrears that continue to accrue, others would argue that the government are once again kicking the can down Boris’s never-ending lockdown roadmap to an inevitable cliff-edge conclusion.

With so many changes, updates and extensions in the last 12 months, it has been hard for both landlords and tenants in the private sector to keep on top of the new procedure associated with possession claims as a result of COVID-19. Unsurprisingly, landlords and in some cases, agents, have been left confused as to what notice they should be serving, when, and for how long. The plethora of relevant periods, condition-precedents and new court rules make an already complex minefield even harder to navigate and as a result, we are increasingly being consulted by landlords in need of guidance.

Understanding your notice

First things first, have you served the correct notice? It is imperative that the correct notice is served and for the correct time period to have elapsed before proceedings are issued. There are two key notices to consider:

Section 21 Notice

Colloquially termed the ‘no-fault notice,’ a Section 21 can be served where the tenancy is an Assured Shorthold Tenancy (AST) and there has been no fault by the tenant. Generally, proceedings issued under this arm of the HA can be dealt with without the need for a hearing, provided the claim is not contested by the tenant. It is important however that before a section 21 notice is served, the following applies: –

  1. The tenancy deposit has been protected and the tenant has been provided with prescribed information about the deposit;
  2. An EPC certificate has been provided to the tenant (at no charge to them);
  3. A valid Gas Safety Certificate has been provided to the tenant;
  4. A ‘How to Rent Guide’ has been provided to the tenant.

Section 8 Notice 

A notice under section 8 of the HA can be used where there has been a breach of the tenancy agreement by the tenant. This is usually in relation to unpaid rent. Proceedings under this arm usually require a hearing and, depending on the breach complained of, a Judge has discretion as to whether or not to award an Order of Possession. However, where the breach is for non-payment of rent and at the time the notice is served, two months are unpaid (where rent is paid monthly), a judge has no discretion and, provided the tenants have no valid defence, an Order of Possession must be granted.

Time periods for each notice

Since 26 March 2020, the law has changed twice in relation to obligatory notice periods that must be provided to your tenants, before proceedings are commenced. The length of time a landlord has to commence proceedings once a notice has been served has also changed. These are set out in the table below:

Date notice was served SECTION 21 SECTION 8
Length of time before proceedings can commence (from date of notice) Deadline for proceedings to be commenced (from date of notice) Length of time before proceedings can commenced (from date of notice) Deadline for proceedings to be commenced (from date of notice)
Before 26 March 2020 2 months 6 months Minimum 2 weeks 12 months
26 March 2020 to 28 August 2020 3 months 6 months 3 months 12 months
After 29 August 2020 6 months 10 months 6 months (exceptions apply) 12 months
How have possession proceedings changed?

Various practice directions and temporary rules have introduced procedural changes to possession claims brought in relation to the eviction of residential tenants. Firstly, it has been made clear that no Orders of Possession will be granted by the Court or enforcement of Orders of Possession by way of bailiff action will be allowed until at least 31 May 2021.

Recommencement of existing proceedings 

Part of the changes to possession proceedings include the introduction of a Stay. If a possession claim was sent to the Court on or before 2 August 2020 and no final Order of Possession has been granted, the claim will have been stayed until 20 September 2020. After 20 September 2020, a landlord is required to file a reactivation notice before any further steps are taken by the Court. If a reactivation notice is not served by 30 April 2021, the claim will be automatically stayed. This means a landlord will have to file an application, together with paying an additional fee, for the stay to be lifted and for proceedings to recommence.

If a possession claim was sent to the court on or after 3 August 2020, no reactivation notice is necessary, and proceedings should have continued automatically after 20 September 2020.

Notice of effect of COVID-19

For any possession claim sent to the court on or after 3 August 2020, the landlord must serve a notice setting out the knowledge that they have as to the effect of COVID-19 on the tenant. In accelerated possession claims, this notice must be filed with the claim form. In all cases, this notice must be served before and produced at any subsequent hearing that is listed.

Time to have claim heard

Before the pandemic, the Courts were required to set a hearing for a possession claim within 8 weeks of the claim being issued. Given the likely backlogs that will arise as a result of the stays imposed to all possession proceedings, the Courts are no longer required to meet this condition and therefore, it could take longer for a possession claim to be dealt with by the Court when proceedings recommence or are issued. The Courts will now undertake a review of claims to help prioritise cases. Landlords will receive 21 days’ notice of the date on which a review will take place of their claim and a hearing (if required) will be listed a minimum of 28 days after this. This should be something to consider by any landlord before commencing proceedings.

Landlords: is it time to seek assistance?

On the basis of the above information, it may be a common feeling that COVID-19 has turned the private rental sector upside down. However, these procedural changes are due to come to an end on 31 July 2021 and together, we will all begin to see the light at the end of this year-long tunnel.

Until that point, if you are struggling with obtaining possession of your property or just need general advice about the best way forward, let the Bray & Bray Disputes Resolution Team take some of the weight off your shoulders. Email ltrueman@braybray.co.uk or call us on 0116 254 8871.