Possession claims during the Coronavirus pandemic
On 27 March 2020 an emergency practice direction (Practice Direction 51Z “PD51Z”) introduced a stay on all existing and new residential possession proceedings until 25 June 2020.
On 5 June 2020 the government announced an extension to the stay until 23 August 2020. The extension will come into effect on 25 June 2020.
Is the stay lawful?
The Court of Appeal in Arkin v Marshall Marshall v Marshall [2020] EWCA 620, heard remotely on 11 May, confirmed that the stay on possession proceedings is lawful.
The Court confirmed the lawfulness of the stay, holding:
- The stay relieved pressure on the administration of justice and the judicial system during the coronavirus pandemic, and reduced the risk of spreading the virus created by enforcing possession orders;
- There are no inconsistencies between PD51Z and the Coronavirus Act 2020, as PD51Z does not change substantive law but only introduces a temporary stay;
- There was no risk that a short delay in hearing possession claims would prevent any persons from having access to justice; and
- Whilst a judge theoretically has the power to lift the stay imposed by PD51Z, it is very unlikely any judge would do so given the purpose of the stay is to relieve the burden on the courts and protect public health.
Can I still issue a possession claim?
Yes. The stay on possession proceedings is not a ban on issuing possession claims. Landlords can still issue a claim by lodging proceedings at the court. However, our experience has been that whilst the possession proceedings will be issued, the proceedings will be immediately stayed for three months.
Practical implications
Landlords should be aware of the following implications of the extended stay on possession proceedings:
- Claims which had already been issued before the coronavirus pandemic will continue to be stayed.
- Any directions which were agreed in claims issued prior to the stay will also be stayed.
- Landlords still have to comply with the extended notice periods for terminating the following types of tenancy:
- Rent Act (protected and statutory tenancies);
- Secure tenancies;
- Assured tenancies;
- Assured shorthold tenancies;
- Introductory tenancies;
- Demoted tenancies; and
- Flexible tenancies.
- Rent arrears currently owed to the landlord are likely to increase (assuming tenants continue to fail to satisfy their rent obligations)
- Bailiffs will be unable to carry out evictions.
Conclusion
The extension of the stay on possession proceedings does little to ease the concerns of landlords who are losing money daily through unpaid rent and, for now, the continuance of the stay means landlord cannot regain possession of those properties to re-let them.
Landlords will have to continue to liaise with their tenants and try, if possible, to agree rent payment plans. If there are other tenancy breaches such as anti-social behaviour, failure to provide access, or sub-letting, landlords will need to consider other remedies, such as injunctions.