The world of residential possession claims is barely recognisable from the one we knew 9 months ago.

First, the most common notices were changed to 3 months, and court possession claims were stayed.  Then most notices were extended to 6 months’ notice.  Then claims were back on in September, but with new procedures to get used to, and the expectation that the backlog would delay things further.

If the issue is rent arrears, and notice has not yet been served or court proceedings have not been started, landlords can serve notices seeking possession, and when those expire, they can issue court possession proceedings, but in general, the whole process (which was already a long one) is going to take much longer. The courts did not progress any possession cases from 27^th March through to September, plus there may also be a new wave of them as the effects of the pandemic take effect on the ability to pay rents.  It all points to delays.  The courts are at least supposed to be continuing business as usual during the November lockdown.

What CAN be done?

If there are more than 6 months’ rent arrears, a 4 -weeks’ Section 8 notice can be served.  A possession claim can then be started.  Previously, the courts had to list the hearing within 8 weeks of the claim being issued, but that rule doesn’t currently apply, which means delay.  The claim must be accompanied by a notice stating what information the claimant has on the effect of the pandemic on the tenant and their dependants.  This requirement will continue until at least March 2021.  If there are “extreme” rent arrears, the court can be asked to prioritise the claim, and it can be brought to the court’s attention if the rent arrears are causing hardship to the landlord claimant, for example, if that rent forms 25% of the landlord’s income.  There may now be a review of the case by phone before the court even lists the matter for a hearing.  With courts no longer being able to block-list possession hearings, and as they are limited as to space and capacity due to social distancing, long waits for hearings are inevitable.

If there are less than six months’ rent arrears, a 6-month section 8 notice, and/or a 6-month Section 21 notice can be served, and the landlord will then have a six-month wait before they can do anything further towards possession of the property.  Rent will continue to fall due during this period. In theory, a landlord can sue the tenants for rent arrears during the notice period or serve a statutory demand on them for the rent arrears, but this is only worth doing if the tenants have the means to pay.  Following a Section 21 notice, a possession claim can be started using the Accelerated Procedure (no hearing required).  The courts will refer these to judges at a manageable frequency, indicating that they will take longer than previously to process them.  The court will require the notice referred to above, describing the effect of Coronavirus.

When a landlord gets their possession order, they can still apply for a warrant of possession.  However, bailiffs may be restricted in areas of local lockdown, and courts may be less willing to transfer warrants to the High Court for enforcement.  This can only mean further delay.

This blog doesn’t consider claims that had already been commenced before March, which will require a reactivation notice.   It also doesn’t consider claims based on other grounds such as Anti-Social Behaviour, illegal occupation or domestic violence, which will have better prospects of getting through the courts more quickly.

For advice on residential landlord and tenant matters, contact Sarah Coates-Madden.