Most housing practitioners have been waiting for this news since the latest lockdown was announced by the Prime Minister on 4 January 2021 - we now have confirmation that the so-called “winter truce” preventing most evictions from taking place (due to expire on 11 January 2021), has been extended until at least 21 February 2021.

This means that the majority of evictions will not be carried out but there are some exceptional cases where the County Court bailiff will be able to continue. These exceptions are where the possession order was made:

  1. In a claim for possession issued against a “person unknown” and which followed the trespasser procedure;
  2. On the absolute ground for possession (s84A) for secure tenancies;
  3. Wholly or partly on grounds 2, 2A or 5 for secure tenancies;
  4. Wholly or partly on grounds 7A, 14, 14A or 17 for assured tenancies;
  5. Wholly or partly on ground 7 for assured tenancies (but evidence must be provided that the property is unoccupied before a Notice of Eviction is delivered and/or the eviction is carried out); and
  6. Wholly or partly under case 2 in relation to Rent Act tenancies.

An additional exception applies when a claim involves substantial arrears and the notice of seeking possession (NOSP) relied upon includes, wholly or in part, ground 2 for secure tenancies, grounds 8, 10 or 11 for assured tenancies or case 1 for Rent Act tenancies.

A claim involves substantial rent arrears “if the amount of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent” – this is the definition given in the regulations that extend the stay on evictions.

This is a significant change to the previous winter truce exceptions which gave a very different definition of what substantial arrears were and which made reference to arrears being at least 9 months’ worth of outstanding rent and that any arrears accrued after 23 March 2020 should be disregarded. These elements have now been removed.

What must be noted is that there is currently no scope for a possession order obtained on the basis of a Section 21 notice to be enforced – the court does not appear to be able to look behind the reasons for the Section 21 notice being served, even if this includes serious ASB or what would otherwise satisfy the substantial arrears definition. This is because the regulations that have been implemented specifically refer to the service of NOSP or cases where unknown trespassers are occupying a property. There is no reference to Section 21 notices, or any other type of notice for that matter, giving rise to one of the exceptions applying.

Any new possession orders made by the court must record what ground the order is made on and whether the subsequent enforcement of it falls within one of the exceptions referred to above. Historically, it was not a requirement for possession orders to refer to the ground relied upon. Where does this leave a landlord seeking to rely on an exception?

If this is the case, landlords are then put to the additional requirement of having to make an application to the court requesting the court “to declare itself satisfied” that an exception applies. This must be done on an N244 application notice and there is no fee payable however it must be made “on notice” meaning that the tenant must be served with a copy of it and a hearing will be listed to consider the application made.

Guidance provided to the County Court requires such applications to be listed in the next possession list available which should guarantee that the application is at least prioritised. We can’t help but be concerned at the potential additional delay which may be introduced by this requirement, on top of the already slow service being provided by many County Courts whom themselves are dealing with huge backlogs leftover by the general possession stay earlier in 2020.

These provisions are in place until at least 21 February 2021, the date by which the latest lockdown measures are currently due to be lifted. Whether this date will be extended remains to be seen and much depends on whether the virus can be brought under control, meaning restrictions can be lifted. With the requirement to give 14 days notice of any eviction this means that the first possible date that an eviction can be set on cases where one of the exceptions doesn’t apply will be early March 2021.

For more information

For further information in relation to any of the above, please contact your relevant ACS contact or Alex Loxton.