Residential Tenancies - Possession Proceedings
Since the Covid-19 lockdown began in late March of this year, Managing Trustees, along with other Landlords, have encountered tricky and sometimes sensitive situations in the context of properties let on residential assured shorthold tenancies.
Sintons continue to assist Managing Trustees to document changes in the rental arrangements of tenancies, in order to accommodate situations where Tenants are in temporary difficulty and unable to pay their rent in the usual way, for example where the Tenants have been furloughed. Please refer to the article “Payment of rent: concerns raised by tenants during COVID-19 pandemic” for details.
We have also however seen evidence of Managing Trustees encountering legal obstacles in seeking to recover vacant possession of properties, for example, where a Manse is needed to house Ministers, and an inability to procure vacant possession results in the need for alternative accommodation to be found with consequent expense.
Legislative changes brought in due to the Pandemic
At the outset of the Covid-19 pandemic, emergency legislation was rapidly introduced and changes were made to the Court’s procedural Rules in order to ensure that existing Tenants of residential properties were not, through legal means, made homeless at a time when there was a need to socially isolate and limit the movement of people.
Legal limitations were rapidly imposed to prevent rented residential property being repossessed, where it would usually be lawful to do so. For example, Landlords were prevented from recovering possession where a Tenant had breached the terms of their tenancy, (most commonly because of accrued rent arrears), or where a Landlord was using their statutory right to recover possession of their property on the basis of giving a minimum of 2 months’ notice to a Tenant to leave the Landlord’s property following the end of their tenancy.
The most significant legal changes imposed were as follows:
- The Court Rules were changed to immediately halt any new or existing possession proceedings and the enforcement of any orders for possession already obtained against Tenants until 23 August 2020.
- While Landlords could still give notice to a Tenant requiring them to return possession of the Landlord’s property to the Landlord following the end of their tenancy, between 25 March and 30 September 2020, the minimum notice period that had and has to be given before Court proceeding can begin for properties in England was increased from 2 to 3 months, and in Wales for notices served up until 23 July the minimum period was increased to 3 months and after 23 July this was further increased to 6 months.
- While again Landlords could still give the required preliminary notice for possession proceeding based on rent arrears or other breaches of a lease, between 25 March and 30 September 2020 the minimum notice periods were increased to at least 3 months.
What will happen next?
While the stay on possession proceedings in the Court system will be lifted with the result that both existing cases for the possession of rented property and new cases will not be automatically postponed and can be progressed towards a final court hearing and an order for possession. The Court system and the District Judges who will deal with such cases are preparing to deal with the backlog of possession cases that have commenced but not progressed during the deferment period and anticipate the commencement of many new cases once the deferral period ends following 22 August.
Additional requirements have been introduced to cope with the backlog of existing cases in the Court system, the new cases anticipated following 22 August, and to take account of the ongoing social impact of Covid-19 such as reduced earnings, furlough and redundancy. Landlords will not only need to ensure that the extended minimum periods of notice have been given but must, also, comply with the following additional requirements which will remain in place until 28 March 2021:
- For existing possession claims started in the Court system before 3 August 2020 the claim will remain stayed and will not progress to a hearing and order for possession unless the Landlord sends to the Court and to the Tenant a ‘reactivation notice’ stating (a) that the case should be listed for a hearing/a decision by the Court; (b) setting out, as far as the Landlord knows, how Covid-19 has affected the Tenant and their family, were they ill, did they lose employment/income?; and (c) if the claim for possession is based on rent arrears the Landlord must provide a copy of the Tenant’s rent account for the previous 2 years.
- Where the Court had already imposed a procedural time table on a case before 23 August 2020, with the reactivation notice the Landlord must also send to the Court and to the Tenant either an updated time table or confirm the existing time table can still be met and must also confirm whether or not the case/court hearing can be dealt with remotely.
- In Claims for possession based on a Landlord giving the required minimum notice to a Tenant that they want the return of their property following the end of their tenancy, Landlords when starting their claim in the Court system must provide the Court with a notice of how they believe Covid-19 affected the Tenant and must both send such a notice to the Tenant and bring a copy to any Court hearing.
The Court will give both the Landlord and Tenant a minimum of 21 days’ notice of any hearing.
Any case started before 3 August 2020 will be halted and will not progress to a possession order unless a Landlord sends the Court and the Tenant a ‘reactivation notice’ by at latest 29 January 2021.
What action should Managing Trustees take?
Generally speaking, Managing Trustees who have property they need to recover from Tenants who are not prepared to voluntarily leave, can and should, if they have not already done so, give the required minimum notice periods as soon as practical. Whilst the minimum notice periods might reduce following 30 September 2020 to their pre-Covid-19 position, there is a risk, especially given the suggestion of a ‘second spike,’ of these increased minimum notice periods being extended.
For Managing Trustees that have already embarked Court proceedings for possession, following 22 August these can now be progressed and Managing Trustees should now be making sure they have the best information available about Tenant’s personal circumstances and that their reactivation notices are ready to send to court as of 23 August along with the Tenant’s rent account for the last 2 years where the claim for possession is based on rent arrears. Cases that are not restarted in this way will remain dormant and will not progress.
Where cases have not been started in the Court system but the required minimum notice periods will have been given following 22 August, possession proceedings can and should be commenced but again Managing Trustees will need to ensure that the Court is provided with the required information as to how Covid-19 affected the Tenant and their family.
The Court system is always reluctant to make a Tenant homeless and will not do so, or even allow cases to progress unless Managing Trustees and other Landlords make sure all of the procedural requirements are strictly complied with.
With the backlog of possession cases now accumulated and, even where the minimum notice periods have been given, it is likely to be late 2020/early 2021 before Landlords are able to recover possession of their properties. Accordingly Managing Trustees wishing to obtain possession need to proceed with the procedural requirements summarised above as soon as practical.
For more information and advice on your specific situation, please do not hesitate to contact Laura Peace at Sintons or visit our website: https://www.sintons.co.uk/religious/our-services/