The Coronavirus Act 2020 (CVA 2020) which came into force on 26 March 2020, substantially affects landlords’ ability to commence possession proceedings.
Following the moratorium (or ban) on evictions between 26 March 2020 and 23 August 2020, it is important for landlords to understand the key changes to possession claims before commencing or reactivating existing possession proceedings that were stayed or paused as a result of the pandemic.
The advice provided in this article is given on the assumption that the landlord has an assured shorthold tenancy (AST) and the tenanted property is in England and Wales. If any other type of tenancy is in place, then alternative advice should be sought.
Prior to Issuing Possession Proceedings
A residential AST can only be brought to an end by serving what is known as a Section 8 notice or a Section 21 notice upon the tenant and then issuing court proceedings for a possession order. Further changes have been made to the length of such notices.
Section 8 Notice
Legislation provides certain limited grounds upon which a Section 8 notice can be served on a tenant.
These notices are usually used where terms of the tenancy agreement have been broken, such as non-payment of rent or breach of a requirement to keep the property in good repair.
If you are considering serving a Section 8 notice, the notice period has been extended from three to six months and this extended period will remain in place until at least 21 March 2021.
Shorter notice periods may apply in more serious cases and you should seek advice if you need to obtain possession quickly.
Section 21 Notice
This notice differs from a Section 8 notice because there is no need to provide a reason why possession proceedings are being commenced. The only requirements for serving a valid Section 21 notice are the service of certain documents on the tenant at the start of the tenancy at the start of and during the tenancy, and it must not be a ‘revenge eviction’, i.e. because a tenant complains about the disrepair of the property.
Possession proceedings cannot usually be started until two months after the service of the Section 21 notice, but this has now also been extended to six months and must be commenced within 10 months from when the notice was given.
If a Section 8 or Section 21 notice was served prior to 26 March 2020 specifying the shorter notice periods that applied prior to the CVA 2020 then these notices can still be relied upon.
Following the service of a notice, tenants should continue to pay rent and abide by all other terms of their tenancy agreement to the best of their ability. Tenants who are unable to do so should speak to their landlord at the earliest opportunity and if a temporary agreement can be reached then this might be preferable to obtaining possession.
However, an important point for landlords is to remember that if necessary, other claims such as debt claims to recover the non-payment of rent are still possible.
Extension of Stay on Proceedings
The Civil Procedure (Amendment No 5) (Coronavirus) Rules 2020 (Rules) came into force on 22 August 2020.
The rules stayed all possession proceedings brought under CPR 55 and all enforcement proceedings. This included proceedings stayed immediately prior to the rules coming into force and proceedings brought until 19 September 2020.
Reactivation of Possession Proceedings
From 20 September 2020, a new Practice Direction 55C (PD 55C) applies which is a temporary provision in relation to possession proceedings and will remain in force until at least 28 March 2021.
It ends the stay previously imposed and sets out the steps required to reactivate stayed possession claims, as well as procedural changes applying both to existing possession claims and the issue of new claims.
If a landlord issued possession proceedings prior to 3 August 2020, a reactivation notice is required to be filed at court and served on the tenant. The purpose of this is to inform the court that the landlord wishes proceedings to continue and to inform the court if the landlord is aware of the impact of coronavirus on the tenant and any dependants.
A reactivation notice can also be served by the tenant but this is unlikely.
Please see the GOV.UK website for further information on reactivation notices: Property possession: information for claimants and defendants
If case management directions had been sent by the court, these are required to be attached to the reactivation notice.
The landlord is also requested to give reasons as to why it feels that the claim needs to be prioritised by the court. This would usually be if there are substantial rental arrears or if the landlord is suffering particular hardship as a result of the pandemic.
If the court accepts that the landlord is facing real hardship, the hearing may be expedited but the court does also have the power to delay a hearing if the tenant is facing exceptional hardship.
The court must give at least 21 days’ notice of any hearing listed or relisted in response to a reactivation notice and if no reactivation notice has been served by 29 January 2021, the claim will be automatically stayed. No reactivation notice is required if a final possession order has been granted.
For possession claims (new or stayed) brought on or after 3 August 2020, any 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 their knowledge of the effect of coronavirus pandemic on the tenant and their dependants.
Given the recent changes, it is paramount that Landlords check the validity of the notices and are aware of the changes before issuing proceedings.
If you are a landlord or tenant and require any assistance with the matters dealt with in this article please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.