The government has released their own Reactivation Notice, and the Master of the Rolls has also released the final version of guidance to courts on how possession proceedings will resume and be conducted following the lifting of the stay on 20 September 2020.
What is a Reactivation Notice?
A Reactiviation Notice informs the tenant/defendant of where the claim against them is, and confirms with them what knowledge the Landlord has of the impact of the Coronavirus pandemic on the defendant. If you began a possession claim prior to the 3rd August 2020 and you would like to reactivate it, you must serve a Reactivation Notice to the tenant
There is no legal requirement to use this particular form but this does cover all the information required to reactivate a case. Claims made after 3 August 2020 are not required to have a Reactivation Notice, however a landlord still needs to notify the court and the tenant:
- that the pre action protocol (if one applies) has been complied with.
- what knowledge the landlord has about the effect of the coronavirus pandemic on the tenant.
The form includes a tick box requesting landlords to say what type of case it is which leads us on to the prioritisation of cases and guidance from the Master of the Rolls, full guidance can be found here.
What is the Overall Arrangements of Possession Proceedings?
The Overall Arrangements for Possession Proceedings instructed courts to schedule review dates followed by substantive hearings, providing a system to prioritise certain cases, such as extreme rent arrears.
Priorities for re-listing cases are:
- Cases with allegations of anti social behaviour.
- Extreme rent arrears.
- 12 months rent.
- 9 months rent where that amounts to more than 25% of a private landlord’s total income from any source.
- Cases involving alleged squatters, illegal occupiers or persons unknown.
- Cases with allegations of domestic violence.
- Cases with allegations of fraud or deception.
- Cases with allegations of unlawful subletting.
- Cases involving abandonment of the property, non occupation or death of defendant.
- Temporary accommodation.
How do Overall Arrangements of Possession Proceedings work?
Careful efforts should be made to reach a compromise between the landlord and tenant before issuing a possession claim. This applies to all landlords. Landlord Associations are required to publish “pre action plans”. Compliance with any pre action protocol must be “shown” and it will be recalled that failure to comply with a pre action protocol may result in a claim being dismissed where the landlord is relying on a discretionary ground and/or penalised in costs with the ground is mandatory. There is no legal requirement for private landlords to comply with a “pre action plan” but it is likely that where a court has discretion whether to make an order or not, they may choose not to make any order is any “pre action plan” is not complied with.
The court will not list the matter for a hearing but rather a “Review Date” and, at least 28 days after, a “Substantive Hearing Date”. Accelerated possession proceedings will not have a review date and will be referred to judges at “a manageable frequency” and may then be listed for a Review Date if the judge doesn’t like what it sees or the tenant has asked to postpone the date for possession.
What happens on the review date?
The landlord is required to produce an electronic bundle (for the court) and a paper bundle (for the tenant) 14 days before the Review Date.
The Review Date isn’t a hearing as such; its purpose is to have the tenant to obtain advice from the duty solicitor, explore settlement and discuss the case. The court will list the matter for a short Review appointment before a judge.
The guidance implies that the Claimant need not attend but is required to be available to discuss the matter with the duty solicitor on that day. It is envisaged that directions might be agreed or an agreement reached (e.g. an SPO) or mediation agreed – in which case the duty solicitor can refer the parties to a mediation pilot scheme.
If the case is not resolved at the Review Date, the judge will consider the bundle and, if the Claimant’s papers are in order, arrange to list the matter for a Substantive Hearing 28 days later.
What happens at the substantive hearing?
This listed for 15 minutes and at that hearing, the judge can decide the case or give case management directions.
The parties will be offered, as far as possible, a physically attended substantive hearing but the parties may agree to attend by video link or local arrangements may mean that the hearing has to go ahead as a telephone hearing.
The guidance confirms that judges under the current law, they may have no or limited discretion in some cases therefore the impact that the coronavirus pandemic has had on a tenant may have little bearing on the outcome.
What about evictions?
Evictions are also covered in the guidance but only in so far as to confirm that these can go ahead from 6 October 2020, 14 days’ notice of eviction is required, safety of all the parties is paramount (so we can expect a revised Bailiff Risk Assessment Form) and that further guidance to bailiffs will follow. The guidance also confirms that further guidance will be issued to bailiffs to ensure that no warrants are executed where (1) there are local lockdown arrangements and (2) other than in the most serious of case “over the Christmas period”.
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