Recovering possession of rented property is by no means an easy task to achieve right now for landlords after the Coronavirus Act 2020 and Civil Procedure Rules were changed to bring in tight restrictions on how courts should manage and consider possession claims. At the start of the pandemic all possession claims were stayed completely until 26 September 2020. Now a few months on we look at what significant changes and new procedures have been put in place to help the courts prioritise urgent cases and manage the high demand that is expected to follow in 2021.
We set out below all the stages required in recovering possession of your rented property.
The first most notable change relates to the extended deadlines that have been imposed when serving the notices seeking possession, both s.8 and s.21 notices. For the majority of cases a deadline for tenants to leave must be set for 6 months’ time save for a few exceptions. We have prepared a separate article about these changes “Residential property : How COVID-19 restrictions have affected notices seeking possession“.
There is also useful guidance notes provided by the government entitled “Technical guidance on eviction notices”
You have to wait until the deadline set out in the notice seeking possession has passed before you can commence a possession claim. For claims based solely on rent arrears, relying on grounds 8,10,11 in a section 8 notice then you can make use of the possession claims online service. For all other grounds you will need to complete the standard possession claim form and post it to your local court. You can apply for an accelerated possession order if you are relying upon a s.21 notice, and you are not claiming rent arrears which is sometimes quicker as a hearing is not required. Note you must have a written tenancy agreement and have complied with all pre-conditions such as protecting the deposit and serving copies of the EPC and Gas Safety certificate, in order to rely upon the accelerated procedure.
To read more about this process and obtain links to the forms you need to complete read the government’s guidance “Evicting tenants (England and Wales)”
Landlords will need to reactivate the claim by filing at court and serving on the defendant(s) a Reactivation notice.
The deadline to send this notice has been extended to 4pm 30 April 2021.
Once the court has issued the possession claim they will send a copy to the tenants who will have 14 days to acknowledge receipt. Tenants will be sent a response form to complete and return back to the court.
A new step has been introduced to the standard possession procedure; Judges will now review the court file before deciding whether to list the case for a substantial hearing. The court will send out a notice setting out instructions for claimants to submit to the court 14 days before the review date an electronic or hard copy bundle of documents relevant to the case, confirm that these have been provided to the defendant tenant and that they are contactable on the date of the review. Tenants are provided with contact details of a support service they can contact to help provide them with advice and support.
If a settlement has not been reached at the review hearing and the Judge considers all steps have been followed then the case will be listed for a possession hearing 28 days after the review date. It is here that a Judge decides whether to make a possession order or give other case management directions of further steps that are to be taken to prepare the case for another hearing or trial.
One of the main reasons why landlords are reluctant to rely upon discretionary grounds to obtain possession such as s.14 anti-social behaviour is because if this challenged by the tenant it is more likely that the case will be listed for trial so that evidence can be heard. This inevitably causes significant delays and further expense as extra work needs to be done to prepare a case for trial such as undertaking full disclosure of all documents the parties want to rely upon and preparing witness statements. Relying upon mandatory grounds for possession such as Ground 8 where there are significant rent arrears or a s.21 notice increase the chances of obtaining a possession order without the need for further case management directions and a trial.
Once a possession order has been obtained the next step is to apply to the court for a warrant of possession so that bailiffs can be appointed to enforce the order if tenants do not leave of their own accord by the ordered date. You have the option here of requesting the county court bailiffs to be engaged or transferring up to the high court for high court enforcement officers to be appointed. Transferring up does incur further costs starting with the court fee of £255 and requires you to make a separate application to the court. Timing is key here, ideally you want to make the application in time for it to be heard at the possession hearing. Otherwise applying afterwards would only reduce the time saving you are seeking to achieve by appointing HC bailiffs as you will have to wait for the application to be considered.
Currently until 31st May 2021 bailiffs are not permitted to enforce possession orders, save for exceptional circumstances such as anti-social behaviour (ground 14) and false statement (ground 17) to name a few.
Once an eviction is able to be enforced, a notice of eviction appointment will be sent to both landlord and tenant, with appointments scheduled for a minimum of 14 days’ time. Bailiffs will not carry out an eviction if they are made aware that the tenant or anyone they live with has Coronavirus, is self-isolating or has been identified as clinically extremely vulnerable. Tenants can apply to suspend the warrant if these circumstances apply or there are any other exceptional hardships that may be caused if the enforcement goes ahead.
Unfortunately, it is quite a bleak future for landlords who are suffering from tenants who are not paying rent or breaching other terms of their tenancy agreement. The quickest way to recover possession remains to reach a settlement with the tenant directly and ensure this is recorded accurately.
For further information and advice on recovering possession of a rented property or review of your case contact our property litigation team at firstname.lastname@example.org.