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Insights

Possession claims during Covid

Posted on 30th July 2020 in Affordable Housing

Posted by

Jenny Lloyd

Associate and Solicitor
Possession claims during Covid

With the stay in possession proceedings ending on 24 August 2020 there is renewed uncertainty for the future.

There is a back log of cases, not just for rent, but also a growing number for anti-social behaviour and notice to quit matters. In the later cases; for a possession order, the Housing Association could move on to re-let the property to a family in need on the Council’s waiting list.

 

A new Practice Direction

County Court proceedings are governed by the Court rules, which are set out in the civil procedure rules. To deal with possession cases a new Court rule, Practice Direction 55C, is to come into force from 23 August 2020.

The new practice direction distinguishes between the type of claim you are dealing with. The types are:

  1. Stayed claims is a claim brought before the 22 August (this includes Appeals)
  2. New claims are claims brought after 22 August.

 

Within the first category there are further distinctions made between:

  1. Claims issued before 3 August
  2. Claims issued after 3 August
  3. Claims where a final possession order has been made (so applications for a warrant of possession)

 

Claims issued before 3 August

For these claims a reactivation notice must be served before the Court will refer the case to a Judge or list it for hearing. This notice must:

  • confirm that the party filing and serving it wishes the case to be listed, relisted, heard or referred; and
  • except in proceedings relating to an appeal, set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

There is no set format for the notice so we are currently working on one to make available to our clients.

When a Notice is received and dealt with by the Court, any hearing must give at least 21 days’ notice to the parties that it is happening.

 

What if I have a Court date that was set before 27 March 2020

The need to provide a reactivation notice still applies to these cases. The Notice is to be given to the Court at least 42 days before the Trial.

This gives us some indication of when possession trials will start to occur again as it will not be possible to serve a reactivation notice and be compliant with the practice direction if the Trial is listed between 23 August and 11 October, where that Trial listing was given before 27 March.

 

What if my case has directions on it that were made before 23 August

You still have to file a reactivation notice regardless of whether the directions are active or not.

In addition to the notice you need to:

  1. Provide a copy of the current directions
  2. Say whether any further directions are needed and what those are
  3. If no new directions are needed say whether or not the existing trial date can be met and whether the case is suitable to be heard by video or audio link

 

Claims issued after 3 August

There is no requirement for a reactivation notice in respect of these claims. However, you still need to serve a ‘notice’ on the Court and the other parties with the following information:

  • in a claim to which the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, confirming that the Claimant has complied with that Pre-Action Protocol and detailing how the Claimant has done so; and
  • in all claims, setting out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.

This notice is to be served at least 14 days before the hearing.

 

What happens if I don’t file a reactivation notice?

If a Notice is not filed by 21 January 2021 the claim will be stayed indefinitely. You can apply to lift that stay, but these rules are in force until 28 March 2021 so you will still have to provide the correct notice depending on when the claim was issued.

 

Other changes

The Practice Direction has also removed the timeframe for listing a case for a first hearing. Normally a possession claim would be listed between 4 and 8 weeks after issue. Whilst it still won’t be listed sooner than 4 weeks, the Court’s do not have to list it by 8 weeks.

Given the backlog of cases we would expect that there will be longer listing times for a first hearing.

 

What can we do about possession cases?

There remains an opportunity for us to get ahead of matters, particularly where there are contested cases. The current stay allows for agreed directions to be made between the parties. Those directions could start progressing a case now, or could be the route map for progressing a case after 24 August. If directions are not agreed you are just going to end up in the backlog of cases and waiting for the Court to be able to get around to hearing your case – be that in person or by telephone.

 

What would be good practice at this stage would be to

  1. Continue to talk to your tenants about their circumstances especially about how the pandemic has affected them (this is very important for rent arrears cases)
  2. Get a current telephone number and/or email address so that a telephone or video conference hearing can be set up and discuss with the tenant any particular difficulties they may have with this type of hearing (e.g. they suffer from some hearing loss or have restricted access to technology)
  3. Point your tenant in the direction of legal advice about the claim
  4. Provide the tenant with a further copy of the issued claim (you know they will have misplaced the original copy by now particularly if it was issued in February or early March)
  5. Discuss with them if they are:
    • Going to contest the claim and then talk to them about directions
    • Going to admit the claim and consider whether it’s a claim where a suspended possession order would be suitable. An SPO can be made after 24 August, particularly if the behaviour has improved (albeit not to being perfect) during this time or there is a real ability for them to make regular payments towards any accrued rent arrears

 

Our Affordable Housing team have over 25 years experience in this sector, forming close working relationships with their housing clients. To find out more about the areas they advise on and their bespoke services please visit their hub page or contact a member of the team.

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