Social Housing Speed Read – Possession proceedings update

Reactivation notices

As part of the arrangements for lifting the stay on possession proceedings imposed under the Coronavirus Act, it was recently announced that it is now necessary for landlords to serve a reactivation notice on their tenants in the majority of possession claims.

The notice is necessary in all possession proceedings that were issued at Court prior to the implementation of the stay which came into effect on 26 March 2020, and throughout the stay up until 3 August 2020. Claims will not be listed, relisted or referred to a judge until the reactivation notice is served and filed at Court, thus indicating that the party wishes for the matter to proceed.

The Government have now released a guideline notice that can be found here. It requires landlords to detail any knowledge that they have regarding the impact of COVID-19 on their tenant. It is highly likely, however, that landlords hold no such knowledge and so it is entirely acceptable to state this, inputting something along the lines of ‘no known impact’. In the event that COVID-19 has had a known impact on the tenant, the Court file will be marked and any difficulties highlighted. New rules state that:

“any defendant or private claimant will be entitled to request that the case is Covid-19 Case Marked. The request can be made at any stage and by any means, but the defendant or private claimant will be required to provide specified information. The party making the request must inform all other parties. The request will result in the Marking unless there is an objection. If there is an objection the Court will decide, on the documents, whether the case should be Covid-19 Case Marked when the file is next before a Judge”.

The “marking” will be available to the Court to assist with listing (whether to take earlier or later), with case management and with exercising any discretion available in decision making.

The notice also provides landlords with the opportunity to express the need for priority listing. The reasons for requesting such prioritisation are somewhat limited but include:

• Cases with allegations of anti-social behaviour.
• Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least (i) 12 months’ rent or (ii) 9 months’ rent where that amounts to more than 25% of a private landlord’s total annual income from any source.
• Cases involving alleged squatters, illegal occupiers or persons unknown.
• Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
• Cases with allegations of fraud or deception.
• Cases with allegations of unlawful subletting.
• Cases with allegations of abandonment of the property, non-occupation or death of defendant.
• Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.

Further, in existing claims where case management directions were made before 21 September 2020, a party filing and serving a reactivation notice must propose new dates for directions and a proposed hearing date, or state that no new directions are required and that an existing hearing date can be met.

Landlords have until 28 March 2021 to reactivate all possession claims and the notice cannot be served on tenants until after the current stay on proceedings is lifted on 20 September 2020. In theory, there is no rush to serve the notice however, all reactivation notices must be served 42 days prior to a listed hearing. Thus, it is imperative that landlords check the dates of any currently listed hearings and effect service on their tenants accordingly.

Alternatively, if a possession claim was issued on or after 3 August 2020, the landlord must serve a notice detailing any known impact of COVID-19 on their tenant (including all household members) at least 14 days prior to any listed hearing. Two copies of the notice must be brought to the hearing. Social landlords must note that they are also required to bring two copies of a notice setting out their compliance with the pre-action protocol.

Landlords should also note that tenants are also entitled to serve a reactivation notice. This may happen in circumstances where defending tenants have issued a counterclaim (relating to disrepair, for example) and are confident in their success.

General updates on proceedings

Guidance has been issued as to how possession proceedings will be conducted going forward given resultant demand following coronavirus-induced delays and reduced court capacity. The full version of the “Overall Arrangements” can be viewed here, however key points to note include:

• No claim for possession should be re-started without careful efforts to reach compromise.
• The parties will be offered a physical hearing for substantive hearings (for example, regarding applications to strike out or final possession hearings), as opposed to hearing by video or telephone conference unless an alternative is agreed between parties.
• 200 additional Deputy District Judges (and Property Tribunal Judges) have been assembled to assist as required in order to alleviate inevitable delays.
• The former standard period between issue and hearing of eight weeks does not apply.
• Courts will list up to around 3 months ahead. The balance of reactivated or newly issued claims will be held in reserve to be listed for a Review on a rolling basis as each week passes.
• Where possible, cases listed on a particular day or part of a day will be of the same type of claimant: e.g. Social Landlords, Private Landlords, Mortgage Lenders.
• Non means-tested free of charge legally aided advice and assistance will be available to defendants through revised duty scheme arrangements.
• Review Dates will be put in place and will generally occur 28 days before any substantive hearing date, although parties will not be required to attend.
• 14 days before the date listed as the Review Date the claimant will be required:
  • to provide to the Court an electronic bundle (with a paper bundle allowed as an alternative);
  • to confirm to the Court that a paper bundle had been provided to the defendant (with an electronic copy in addition where the defendant is able to receive that);
  • to confirm to the Court that the bundle includes all required material, specifically including enhanced information about the defendant now required;
  • to confirm to the Court that the claimant will be available during the Review Date to discuss the case (by telephone would be sufficient) with the defendant or a duty scheme (or other) adviser.
• To ensure that compromise is not deterred, local authorities will be expected to take the approach, guided by the Ministry of Housing, that signing a consent order or agreeing an order for possession, in itself, does not mean a tenant or borrower should be found intentionally homeless.
• Notice of eviction, of at least 14 days, is now required both in the County Court and in the High Court.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.