On Friday 8 January 2021 the Government published new regulations further extending the ban on evictions. The regulations (The Public Health (Coronavirus) (Protection from Eviction) England 2021) which we shall refer to as “the Regulations", came into effect yesterday and apply to England until 31 May 2021.
The Regulations start off by saying that, subject to some exceptions, “no person may attend at a dwelling house for the purpose of executing a writ or warrant of possession or delivering a notice of eviction”. A “notice of eviction” is the notice from the bailiff of the eviction appointment and not any notice that a landlord might serve to bring about the end of the tenancy.
What is Government guidance?
For the full Government guidance, visit their dedicated Coronavirus support pages.
In so far as the guidance on warrants is concerned, there is little difference between the guidance for social landlords and that for private landlords.
Are there exceptions?
Only the most serious of cases can be exempt from the current Government guidance.
Trespassers under the Civil Procedure Rules where they are “persons unknown”. (Paragraph 2 (2) (a) of the Regulations)
Anti-social behaviour where the possession claims relies on:
- s84A Housing Act 1985 (absolute grounds for possession for secure tenancies) (Paragraph 2 (2) (b) of the Regulations)
- Grounds 2, 2A or 5 Housing Act 1985 (anti social behaviour, domestic violence or false statement which are discretionary grounds for secure tenancies) (Paragraph 2 (2) (c ) of the Regulations)
- Grounds 7A (mandatory possession for serious anti social behaviour for assured/assured shorthold tenancies) (Paragraph 2 (2) (d) of the Regulations)
- 14, 14A or 17 Housing Act 1988 (anti social behaviour, domestic violence and false statement which are discretionary grounds for assured/assured shorthold tenancies) (Paragraph 2 (2) (d) of the Regulations)
- Case 2 Schedule 15 Rent Act 1977 (discretionary anti social behaviour grounds for regulated, protected and statutory tenancies which pre date 15 January 1989. Local authority and housing association tenancies are not Rent Act tenancies) (Paragraph 2 (2) (e) of the Regulations)
Substantial rent arrears of at least the equivalent of 6 months rent and the grounds relied on are one of the following (all Paragraph 3 of the Regulations)
- Ground 1, Schedule 2 Housing Act 1985 (discretionary ground for secure tenancies where rent not paid or there has been another breach of tenancy)
- Ground 8, Schedule 2 Housing Act 1988 (substantial rent arrears of 2 months/ 8 weeks or more – mandatory ground for assured/assured shorthold tenancies)
- Grounds 10 or 11, Schedule 2 Housing Act 1988 (discretionary rent arrears grounds where some rent is due at the point a notice is served and proceedings issued or persistent delay with payment rent)
- Case 1 Schedule 15 Rent Act 1977 (discretionary ground for regulated, protected and statutory tenancies)
Death of the tenant under Ground 7, Schedule 2 of the Housing Act 1988 but only where the bailiff is satisfied that the property is unoccupied.
What steps should you take before a Possession hearing to ensure your Possession Order can be enforced?
In our experience, having obtained a possession order on Ground 14 since the Regulations came into effect, judges are alive to the new requirement that the Possession Order must be explicit about the ground for possession. However, we strongly recommend that you ask the judge to include the relevant wording. Where the claim relies on a rent arrears ground and the arrears are more than 6 months, this should also be added.
We recommend requesting the following wording.
“Pursuant to regulation 2 (2) The Public Health (Coronavirus) (Protection for Eviction) (England) 2021, the court is satisfied that the Claimant is entitled to enforce this Possession Order by warrant or writ of possession as it is made wholly or partly under Ground [insert ground] [the court is further satisfied that the case involves substantial rent arrears of at least an amount equivalent to 6 months’ rent]”
What if there is an existing Possession Order and Possession Order based on one of the exceptions?
Providing that the Possession Order falls into one or more of the exceptions, it is capable of enforcement but there are some things to do first.
- Check that the Possession Order explicitly states that it has been made “wholly or partly” on one of those grounds. The guidance suggests that any Possession Order made from 17 November 2020 will have been marked as suitable for proceedings for enforcement.
- Where the Order is not so marked with the relevant wording then the landlord will need to apply to court. A Possession Order might not be “marked” with the relevant wording because, for example, the arrears were not within the definition of “substantial” (prior to the latest Regulation, substantial arrears for the purposes of enforcement were equivalent of 9 months rent) or the Possession Order is pre 17 November 2020 or simply because the judge forgot.
What if there is an existing Possession Order and possession not based on one of the exceptions?
It is possible to apply to vary the Possession Order to add new grounds so, for example, a Possession Order (either outright or suspended) based on rent arrears, could be varied to include anti social behaviour so as to bring it within the exceptions.
These are complicated applications to make and legal advice should always be sought beforehand.
How to apply to have the Possession Order “marked”
Where an application to have the Order “marked” with the relevant wording is required, the following steps are recommended:
- The landlord should use form N244. The application should request that the court (and this is the wording suggested in the guidance) “declare itself satisfied of the following matter set out at [specify which paragraph of the Regulations applies] namely [specify the matter e.g. anti social behaviour/substantial rent arrears]”
- Where there are the equivalent of 6 months plus rent arrears, the landlord should include an up to date rent account.
- A copy of the application must be sent to the defendant.
- The guidance says there is no fee to pay for this application. We recommend that you make this clear on the application whether you make the application by PCOL or by paper.
- An up to date rent statement, if relevant, should be brought to court for the hearing as there is bound to be a delay between making the application.
Whilst we think that these applications could be dealt with without a hearing, the guidance suggests that the court will list such matters for a hearing which the landlord is expected to attend (or participate in if not an in person/attended hearing).
Suspended Possession Orders
The guidance doesn’t say and seems to assume that the order is an outright one.
Ordinarily, for straightforward rent cases, a Claimant would use Form 325A and attach a copy of the rent statement. We think that unless the order is explicit about one of the exceptions applying, a landlord will need to formally apply for it using N244. For suspended Possession Order for anti social behaviour cases, a landlord would have to apply using N244.
We recommend for any suspended Possession Order which is capable of being enforced, the application requests (1) for permission to enforce by warrant and (2) for the Possession Order to be “marked” with the relevant wording. The court may list such an application for a hearing. The tenant can object to permission being granted and the court has wide discretion in this respect.
What to do after the Possession Order is “marked”
After obtaining confirmation from the court following the application, the Possession Order is ready to be enforced. Use of the Form 325 continues so use that and add any court order following the application to have the Possession Order “marked” and/or for permission to enforce (if relevant).
On receipt of the request to enforce the order by warrant, the bailiffs are likely to scrutinise the Possession Order, N325 and any accompanying paperwork to make sure that it is capable of being enforced so make sure all the paper work is present and correct.
The bailiff will deliver to the tenant a notice giving no less than 14 days notice of the eviction.
Where the landlord has obtained possession on a discretionary ground, the tenant can apply to stay or suspend the warrant. Where the order is made on a mandatory or absolute ground, the court has no jurisdiction to stay or suspend the warrant but the court may still stay or extend where the below paragraph applies.
The guidance says that the bailiffs will not carry out an eviction where the tenant or anyone in the house hold has coronavirus, is self isolating or has been identified as Clinically Extremely Vulnerable. If any one is observed to be displaying symptoms, the bailiffs must leave straightaway without executing the warrant.
We would recommend that you try to contact the tenant in the days before any eviction to ensure that they are not self-isolating and if they are then find out from your local Council as to whether there are any provisions for such people to be accommodated. Failing this we would recommend that you ask for the bailiff’s appointment to be made for a different date and time.
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.