What is the latest guidance for Possession Claims in court?
After an eventful couple of weeks where the Government has made changes to housing legislation, we have taken time to reflect on these changes and asses where we are now.
The Government has published guides covering the following main areas:
- Landlords and tenants
- Local authorities
- Technical guidance on eviction notices
These have all been updated following the recent changes to legislation. The current copies of each can be accessed on the Government website.
Possession Claims in Court
After getting ready for with any claim issued under Part 55 of the Civil Procedure Rules to start again on 25 August, the Government introduced a further stay, meaning nothing will happen until 20 September 2020 at the earliest, but they have a potential to get stayed further.
Part 55 of the Civil Procedure Rules governs the way possession claims are made. It is important to note, however, that Part 55 does not apply to claims to demote a tenancy. These claims are made under Part 65.
With both Part 55 possession claims and notices it’s clear that there is a priority of cases to be dealt with.
- Anti-Social Behaviour
- Domestic Violence
- Long standing rent arrears – i.e. over 6 months arrears
We should however not forget that possession claims are not the only business that a Court must deal with, and these cases will have a limited amount of Court time amongst other priority business, such as committal proceedings and care proceedings.
If the 20 September deadline doesn’t get pushed back any further, then that date will not be the magic date of getting cases before a Judge.
Reactivation notices will still need to be done. The date for filing the reactivation notice has also been extended, so these can’t be filed before 20 September. Once filed the Defendant will also have 14 days to respond to that notice.
This would take any issued possession case to at least 4 October before the Court looks at listing it – so in reality we are looking at Court hearings towards the end of October at the very earliest. Possession claims used to have to be listed from hearing between 4 and 8 weeks after issue, although time could be shortened for serious ASB cases. However, since coronavirus, the court are no longer bound by these times frames so expect long delays in getting possession claims listed.
Can anything be done to speed things along?
However, with social distancing rules in place, and likely to stick around for a good bit longer yet, we need to bear in mind that the Courts are going to be running on a limited capacity. The days of the past with block listings of multiple cases at a time are likely to be just that, a thing of the past.
This is because Court buildings all have a limited capacity of the number of people that can be within them at any one time, and waiting areas are the main crunch point for social distancing. It’s not just those of us attending Court that need to be kept safe, but also the Court staff who work in those buildings. Without the staff to run it, there will be no Court sitting – a sobering thought for those of us who are trying to deal with the rise in serious anti-social behaviour.
This leads us to more telephone hearings. There are various issues with telephone hearings with tenants. Some of these will mean that the hearing has to take place in person, but as a sector that can mean coming up with some imaginative solutions to problems. It’s also time to start thinking past the black and white and see what middle ground can be reached.
No access to a duty solicitor
This is an issue for ‘in person’ hearings as well since there will not be a duty solicitor present in the Court building if there is a housing list running.
Whilst we can do the normal procedure of pointing the tenant towards the local legal aid advice available for them, we all know that it’s normally the act of turning up to Court that gets them to take advice.
Some duty solicitors will be able to set up a clinic, but many also struggle with the issue of space and several will still have their offices closed.
Given this, if you have a safe space for a legal aid clinic to be set up, offer it. It may seem a slightly perverse suggestion but the difference will be that you get before a Judge and you can point to the several letters and actual/attempted telephone conversations that you have had with the tenant and also say, “and by the way we’ve arranged this set access to legal advice for our tenants once a month/fortnight/week”.
It may make no difference to whether the claim is stayed for the tenant to get legal advice, but if you can why not try?
Access to a telephone
The biggest issues to doing hearings by telephone or video link is making sure that everyone has access to the technology to be able to do so.
Whilst many tenants will have a phone (and the phone call doesn’t cost them anything so they don’t need to have any credit on it) there are some who don’t, and more who wouldn’t have any access to video capable facilities to be able to partake in video hearings (and this would cover trials).
Now you could just consign this type of case to the list of cases that need an in person hearing and be happy to wait for it to happen when the Court has time to list it (note we’ve just had a 2 day trial listed for the end of February 2021, so you will be in for a bit of a wait).
Some Courts’ have a ‘clean room’ where Defendants can access video link equipment, so that whilst they are still in the Court building, they are not in the Court room. However, this is very limited and is a shared resource across all the types of case that a court deals with.
It is however something that may be possible for some Landlords to consider if you have a spare room, even if it just has a telephone in it to enable the tenant to access a telephone hearing. Due to the rules of the Court it would only be the tenant/defendant who would need to access this facility and they would need to be in the room on their own.
What are my tenants up to?
For those of you who like to keep track of which tenants are in the criminal courts, the Magistrates Court lists are for the first time available free of charge online. The Crown Court daily case lists are also on there.
How Tozers can help?
For further help and support around social housing during the curent situation then our experienced Housing Management team are available to help and support you.
Last updated on 10/09/2020