HOME REPOSSESSIONS: REVIEW HEARINGS TO BE SCRAPPED

SIXTH 'RETURN OF BREAKING LAW' UPDATE  - TO CHAPTER 67 ('AT WAR WITH YOUR HOME LANDLORD')

There is huge backlog of home repossession cases waiting to be heard in the county court. This results from the succession of halts to the cases during the pandemic. As a temporary measure, a review procedure of most cases was introduced when cases started to be dealt with again at which the prospect of an agreement between the parties was to be investigated. Where there was no agreement and the parties were not agreeable to attempt reaching an agreement through mediation, a final hearing was to be fixed.

But the review procedure has been a disappointment. Too few cases have settled. The Master of the Rolls, who is the head of civil justice in England and Wales, has decreed that a review hearing should no longer be standard practice. Similarly, a triage hearing before any final hearing should generally no longer take place. This will be reflected in amended procedural rules which can be expected in the near future. But if local courts want to continue with these interim hearings they will be at liberty to do so. I fancy, however, that there will be little appetite for them unless the case is being defended on genuine and substantial grounds.

The changes will mean earlier final hearing dates for landlord and tenant as well as mortgage possession cases and will come as a relief to many landlords who have felt aggrieved at the long delays in them achieving what they claim is the justice they deserve,

 

HOME REPOSSESSIONS: LATEST: TRAPS FOR LANDLORDS, DEFENCES FOR TENANTS: England & Wales

The general coronavirus ban on residential evictions is over. But modifications to the procedure landlords must follow before they can have any hope of the county court making a possession order are still with us - and have changed again.

Firstly, the notice period. There are two kinds of notice which come into play: the fault-notice (arrears of rent, anti-social behaviour and the rest) under section 8 of the Housing Act 1988 and the no-fault notice under section 21 of the 1988 Act. 

In England, in respect of the section 8 notice, at least three months was required during 26 March to 28 August 2020 inc. This was doubled to a stonking six months  during 29 August 2020 to 31 May 2021 inc with variations where rent arrears, anti-social behaviour, rioting and obtaining the tenancy through a false statement were relied on. The six months has now been reduced to four months as from 01 June until 30 September 2021 but different periods will apply in rent arrears cases: at least four weeks for four months' arrears and four months for less than four months' arrears, tapering down from 01 August to 30 September 2021 inc to two months' notice for less than four months' arrears. The notice period on the ground of the tenant being unlawfully present in the UK or in the event of the tenant's death has reduced to two months from 01 June 2021. Notice periods for social introductory and demoted tenancies are amended as from 01 June 2021 and tapered as from 01 August 2021. 

The section 21 notice period in England of the minimum of three and six months as above have applied but as from 01 June to 30 September 2021 inc the six months has been reduced to four months,

Secondly, the form of notice in England. Under section 8, it's form 3 and under section 21 it's form 6A. The forms have been revised alongside changes in notice periods and form 3 was revised on account of the introduction of the debt respite moratoria as from 04 May 2021. Both forms have again been reamended as from 01 June 2021.

In Wales, the current general minimum six months' notice requirement is running until at least 30 June 2021.

So notice has been given but when given it was for less than the minimum period which applied at that time? Then the notice is not worth the paper it was written on. Any county court claim based on the insufficient notice should fail and the landlord should serve a fresh compliant notice and commence new proceedings on the strength of it. And say the notice was not in the correct prescribed form which was current when it was served? There may be a defence for the tenant because of this. It would depend on the ways in which the notice was incorrect and the particular circumstances of the case. Professional advice should be taken on this by the tenant.

Just one other thing. The life of a section 21 notice is limited. If a possession claim has not been started before the notice expires then a fresh notice has to be served. Before coronavirus, the notice had a life of six months. For the period 29 August 2020 to 31 May 2021 it was increased to ten months. It has now been extended to eight months from 01 June to 30 September 2021 inc.

COVID-19: RESPITE FOR TENANTS: LATEST

That extended ban on evictions and the delivery of notices of eviction of residential tenants in England on which I reported to you at  https://www.breakinglaw.co.uk has arrived. And to prove it, as they say, it's 'ere! It will continue until 31 May 2021 and for that, tenants may bless and landlords may curse, the Public Health (Coronavirus) (Protection from Eviction) (England) (No 2) (Amendment) Regulations 2021 (SI 2021/362) laid before Parliament today 22 March 2021. As before, there are exceptions. These are that the possession order was against unknown trespassers, or has been made wholly or partly on the grounds of anti-social behaviour, nuisance, domestic abuse in social tenancies, false statements, substantial rent arrears exceeding six months' worth or where the occupier has died.

Flexible Tenancies: Landlords in Trouble

Between 2014 and 2018 an estimated 30,000 flexible tenancies were granted by local authorities. If a flexible tenancy has been granted to you, your landlord may well be frustrated in any attempt to get you out before the fixed term of the tenancy has come to an end. A judgment of the Court of Appeal in a case called Croydon London Borough Council v Kalongola [2021] EWCA Civ 77 has made it clear that without a so-called forfeiture clause in your tenancy agreement - you should check with a professional on whether you've got one - the landlord cannot bring the tenancy to an early end. And, even if there is a forfeiture clause in the agreement, there are certain technical steps the landlord would need to take before it could secure a court order for possession against you.

Croydon has been refused permission to appeal to the Supreme Court. It might seek permission from the Supreme Courts itself. We shall see.

COVID-19: EVICTIONS & BAILIFFS HALTED AGAIN: ENGLAND

Regulations made today and coming into force tomorrow 17 November 2020 will save the majority of residential occupiers in England from eviction and seizure of their goods for the time being. The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 (SI 2020/1290) stop evictions up to 11 January 2021. They also stop bailiffs and enforcement agents seizing goods inside residential premises (but not outside or on the road and not from business premises) until the end of the current national lockdown on 02 December 2020. Possession proceedings which are pending and new possession cases can still continue.

There are exceptions to the paralysis on evictions (which extends to even delivering tenants with a notice of eviction proclaiming when the bailiff or enforcement against will be calling and so this effectively amounts to a ban on fixing eviction appointments).   The main exception is where the possession order was made on the ground of rent arrears amounting to the equivalent of nine months but any arrears which have clocked up since 23 March 2020 will be disregarded for this purpose. Other exceptions include evictions where the possession order has been made in relation to social tenancies on the grounds of anti-social behaviour, nuisance, false statements to obtain the tenancy or domestic abuse and orders made against trespassers whose identities have not been established.  

COVID-19: NOTICES TO TENANTS: LATEST ON 6 MONTH INCREASE;ENGLAND

I reported on the extended stay to 20 September 2020 for  possession proceedings and enforcement at https://www.breakinglaw.co.uk Further covid-19 laws on the notice period to be given to tenants (before possession proceedings can be brought against them) came into force yesterday Saturday 29 August 2020. 

The new laws will last until 31 March 2021. For any notice given to a tenant from yesterday and up to 31 March 2021, the period  is doubled from what was the temporary three months to six months. There is a mighty exception. Where the landlord is relying on non-payment of rent and the arrears are for at least six months' worth of rent, the notice period is temporarily shortened to four weeks. There are other exceptions in relation to possession on the ground of anti-social behaviour and in respect of introductory and demoted tenancies.

For chapter and verse, see the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (SI 2020/914).

POSSESSION STAY EXTENDED

I told you, didn't I? The ban in England and Wales on tenants being evicted and court possession proceedings being pursued was to be lifted as from yesterday. If you were a tenant, you blessed. If you were a landlord, you cursed - as you read https://www.breakinglaw.co.uk/2020/08/bailiffs-about-to-awake.html

And what have they gone and done? The ban has been extended until 20 September 2020 by the Civil Procedure (Amendment No 5) (Coronavirus) Rules 2020 SI 2020/889. This means that where a possession order has already been made, a tenant cannot generally be evicted before 5 October 2020 (a 14 days notice of the eviction appointment must be given unless the court shortens the notice period). And it means that the hearings of cases where no order has yet been made are unlikely to take place before around 28 October 2020.

The notice by the landlord requiring the tenant to vacate is being extended from the temporary three months to a temporary six months but more on this shortly when the necessary legislation has been published.

But the ban on bailiffs and High Court enforcement agents seizing goods where a judgment has gone unsatisfied is over.

COVID-19: POSSESSION MORATORIUM EXTENDED

The freeze in England and Wales on property possession proceedings being progressed in the courts and possession orders being enforced by county court bailiffs or High Court enforcement agents is being extended until 23 August 2020. Proceedings and orders against trespassers are excluded. The Civil Procedure (Amendment No 2) (Coronavirus) Rules 2020 SI 2010/582 are responsible and cover the same ground as the amended CPR PD 51Z.

COVID-19 REPOSSESSIONS HALTED IV: TRESPASSERS' HONEYMOONS OVER: LATEST

Please see my posts of 27 March 2020 (two) and 01 April 2020 about the stay of  property possession proceedings and the stay on enforcement of  possession orders.

Today a revised CPR Practice Direction has been published (it is to be found in what is called the 120th CPR update) and operates from 18 April 2020. It -

• Excludes from the stay on bringing possession proceedings and enforcing possession orders, those proceedings that have been brought against and the enforcement of orders wish have been made against TRESPASSERS and that, if I may say so, makes perfect sense. The stays will also not apply to the fast track procedure for dispossessing trespassers by way of interim possession orders.
• Clarifies that parties to possession proceedings can make applications for case management direction (and this will usually relate to defended cases) where those directions are agreed by them. This will enable the directions to be made by a judge - provided they are not crazy! - on paper and without any court attendances. It will also enable possession proceedings to resume effectively once the stay period is up.
• Clarifies that, as I have suggested, there is no bar on possession proceedings being commenced in court during the stay period. But it will not be possible to progress them unless they have been brought against trespassers.

COVID-19: REPOSSESSIONS HALTED III:UPDATE

There is no legal impediment for the time being to a residential landlord giving a tenant three months' notice to leave (see https://www.breakinglaw.co.uk/2020/03/covid-19-repossessions-halted.html) so that they are in a position to start possession proceedings if the tenant stays put when the freeze on bringing proceedings thaws out. The changes which the landlord will need to make to the prescribed form of notice are set out in the Coronavirus Act 2020 at schedule 29!! But let's hope that, in theses difficult time, such disputes between landlord and tenant as exist can be settled amicably. 

COVID-19: REPOSSESSIONS HALTED II: PRACTICE DIRECTION

Here's chapter and verse - the authority for the halting of proceedings for possession of tenanted and mortgaged properties and evictions in the form of a practice direction made under the Civil Procedure Rules 1998.

PRACTICE DIRECTION 51Z – STAY OF POSSESSION PROCEEDINGS - CORONAVIRUS This Practice Direction supplements Part 51

1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It is intended to assess modifications to the rules and Practice Directions that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.

Eviction U-Turn Update

I warned you it was coming (see http://www.breakinglaw.co.uk/2018/09/eviction-u-turn.html). It will arrive on 1 October 2018. As from then, it will no longer be necessary to obtain the county court's permission to obtain a warrant of possession - get the bailiffs in - where the tenant has broken the monetary terms of a suspended order (for example, pay the current rent as it falls due plus £5 per week off the arrears). Permission will still be required where non-monetary terms have been broken (for example, don't play loud music between 6pm and 6am and don't let that thug of a cocaine sniffing son of yours into the flat.)

The requirement for permission to put in the bailiff will also go for breach of a non-monetary condition attached to a suspended order for seizure of goods, by way of  a High Court or county court writ/warrant of control. And to a suspended order for an order for return of goods (for example, you can keep the car on HP so long as you pay monthly instalments plus £50 per month off the arrears). 

The abolition of the need for permission in these cases will not prevent the debtor from seeking to stop the bailiff when they know they are due to pounce by applying for the writ or warrant to be suspended. Such an application should be made as soon as possible and will be given a court hearing.

The change is made by the Civil Procedure (Amendment No 3) Rules 2018 SI 2018/975.

SUSPENDED POSSESSION GONE WRONG

This is a postscript to Landlords in Trouble (see post on 26 October 2016). It is now clear that tenants and mortgage borrowers who are alleged to have breached a suspended order for possession are to have protection against a landlord or lender having them evicted without a judge giving their approval to this step.

For the moment, the landlord or lender who says essential money has not been paid under the suspended order must request permission from a judge for a bailiff to be put into action by completing a new form swingingly called an N325A or an amended form N445. These can be accessed on hmctsformfinder.justice.gov.uk

Any tenant or mortgage borrower evicted under a suspended order but without the prior approval of a judge may well be able to secure a return to their property by courtesy of the court and damages.

LANDLORDS IN TROUBLE

Very often the county court will order a tenant out of their home but suspend - halt - the order, especially where the landlord is a social landlord such as the local council or a housing association. So the order may say that the tenant is to go by a fixed date but that the order is to be suspended so long as they pay rent arrears by specified instalments or, where there has been anti-social behaviour, so long as they do not make a nuisance of themselves for a given period.

What happens if the condition of the suspension is broken in that, for example, the tenant fails to pay the arrears instalments or plays punk music at a high volume from 1am until 6pm? The view has been taken that, in this situation, the landlord could apply to the court for the bailiff to go in without the matter coming back before a judge. But procedural rules on this were changed in 2014 and the changes have been largely overlooked.

The Court of Appeal has just ruled that under the new rules, the landlord needs the permission of a judge before asking for the bailiff to evict. It is not essential for there to be a further hearing to decide whether permission should be granted but there must be some judicial scrutiny.

This ruling will have considerable impact. If the bailiff is coming to evict under an order which was originally suspended and the landlord has not obtained prior permission to send them in, the court may cancel the bailiff's authority to evict and the landlord will have to seek judicial permission which they should have done in the first place. And if the tenant has already been evicted without that judicial scrutiny, they may be able to successfully apply for the authority under which they were evicted to be set aside and to be allowed back into the property. They could then argue against the landlord's second attempt to have them evicted. The court does have discretion to overlook the procedural breach. The Court of Appeal indicated that it might well not do so where the landlord could not show they had made genuine mistake about the procedure to be followed. A tenant who was without legal advice when evicted might also be able to persuade the court not to overlook.