Date Published 22 June 2020
When will we get possession?
The suspension of the courts hearing possession claims was due to come to an end on 25 June but has been extended. The Practice Direction 51Z for the Civil Procedure Rules (CPR) was initially issued on 27 March 2020 and suspended all Part 55 possession claims and enforcement of those claims for a period of 90 days until 25 June 2020. At the time it was issued it said it would last until 30 October 2020 which is of course a significantly later date than 25 June. We suspected, and now we know, that this was to allow for an extension to the suspension. This has now been announced and will now last until 23 August. This therefore suggests that there is the possibility of a further extension until the end of October.
The suspension applies to all possession proceedings whether that is under section 21, section 8 or indeed a mortgage provider seeking an order for repossession.
Should we serve notice or is there another way?
In many circumstances the serving of a notice may be the only option, for instance the tenant is not paying the rent and will not enter into any dialogue with you. The Government have indicated that the pre-action protocol that social landlords are required to go through before action is taken, or something akin to that, may become a requirement too in the Private Rented Sector. This would require that a landlord had completed a number of steps before starting a legal action or indeed serving a notice. One might imagine that this could become a requirement before claims start to be heard again.
The serving of the section 21 or section 8 notices is an action that can put the landlord and tenant in conflict with each other leading to a breakdown in the relationship – a line has been drawn in the sand and there is a deadline. Of course now with the extension to the stay on possession proceedings, and even when the now three month notice expires, there will be a further extended period before the courts will hear the claim. Additionally there will be large backlog of cases for the court to deal with before they can hear more recent claims.
Even before the initial stay on possession claims there were long delays amounting to many months, in some cases, before getting to court and even once a court order was granted further delays before the execution of the court order.
In reality at the moment we have no idea when proceedings may start to be heard or even how the restart will happen. It is unlikely that it will be an on/off switch – today we are not hearing claims and tomorrow it will be back to normal. As with the easing of the lockdown it is more likely to be a phased restart.
The question therefore is rather than being in a conflict situation with the tenant for many months or potentially a year or more is there another way?
Are there other options?
We have already said that there may be no other option than to serve notice and this is most likely to be the case in relation to rent arrears. Even in this scenario though there is an option, as unpalatable as it may seem. A landlord may take the view that it is better to write off some rent arrears and accept an offer to surrender the tenancy by the tenant rather than having reduced or even no rent for an indeterminate period. An agreement that the landlord can claim the full deposit will offset a proportion. The benefit for the tenant would be that they could avoid or mitigate the debt and possible county court judgement for the arrears. The downside for the tenant is that they would have to find alternative accommodation. Consequently this will not be appropriate or even possible in many circumstances, but potentially worth exploring.
Where the reason for service of notice is, for instance, that the landlord wants to sell or move back into the property or, for whatever reason, not renew the tenancy, then it may pay to let the tenant know well before it becomes necessary to serve the notice. This could be coupled with an indication that the landlord would be prepared to accept an earlier surrender of the tenancy if the tenant found a suitable property.
In this scenario the tenant is likely to appreciate the early warning and without an immediate deadline be better placed to search for an appropriate property. Most importantly the relationship remains intact.
Flexibility
We all have to rethink and relearn how we do things these days. Whether that is learning to work from home or crucially how we run our businesses with social distancing and other regulations changing our normal processes and procedures. Landlords too are considered a business and like agents will have to adapt to the new landscape and rather than immediately searching for the latest version of a notice, consider the alternatives. In our example above whilst an early offer to surrender a tenancy by the tenant may come sooner than the landlord might ideally have wished for, the goal of vacant possession may have been achieved without ever having had to serve a notice, saving potential court costs and avoiding a pressurised situation.
Money Claim Online
Whilst it may not help with securing possession of the property, raising a Money Claim Online for rent arrears, even during a tenancy, may be an appropriate action to take against a tenant who is simply choosing not to pay rather than against a tenant who can't pay. The courts would expect the parties to conduct the pre-action protocol before starting proceedings which aims to encourage the parties to engage and communicate and to investigate whether the issue can be resolved by other means. The claim could only apply to arrears accrued to that point and not future arrears. A link to the pre-action protocol can be provided to any of our clients registered with us.
What next?
As part of this changing landscape the Government have made it clear that they wish to bring an end to the use of section 21 and probably replace it with some additional or changed section 8 Grounds. Whilst this might not be high on the Government's priority list whilst they are dealing with the Coronavirus pandemic it will probably be close to the top of the ‘to do list' when time allows. In the meantime the Government have demonstrated that with a compliant Parliament changes can be made quickly.
We are certainly not back to the old normal, welcome to the new world.
