The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
We finally have some detail about what will happen after the end of the possession stay/evictions ban on 23 August 2020.
You may first want to listen to our 20-minute possession podcast in addition to the information below which was published shortly afterwards.
The full text of a new practice direction 55C was published on 21 July. The PD Update is viewable online. It comes into force on 23 August 2020 when the stay ends.
Timescales for listing
The 8-week listing rule (possession cases must be listed for hearing within 8 weeks of issue) is temporarily suspended until 28 March 2021. No doubt this is simply to help courts tackle the backlog over time. (see para 4.1)
For cases issued and stayed before 3 August 2020
A reactivation notice is required. The exception is claims where a final possession order has been made – i.e. where you are just waiting to apply for a warrant. If therefore you have an SPO or outright possession order made already which has been breached, then subject to compliance with your policies, you can proceed to apply for a warrant after 23 August 2020.
If you do not or simply forget to file and serve a reactivation notice by 29 January 2021 then the case will be automatically stayed. You can, however, apply to lift that stay – it is not treated as a sanction. If therefore a tenant is meeting the terms of a possession order and no action is required then you do not need to do anything now. If you later need to take enforcement action after 29 01 2021 you must remember to apply to lift the automatic stay before doing anything else.
The content of a reactivation notice is set out at para 2.3 of the PD – it must confirm:
- the party filing and serving it wishes the case to be (re)listed
- set out what knowledge the landlord has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.(NB this does not apply if the case is an appeal of a possession order)
Various things must also be served with a reactivation notice:
- a rent account for the last 2 years must also be served if the claim is based on rent arrears (see para 2.4 - again does not apply if it is an appeal of a possession order)
and if case management directions had been made before the stay then:
- a copy of the last directions together with new proposed dates is required with a draft order OR a statement that no new directions are required and any existing hearing date can be met. (see para 5.1) and
- a statement whether the case is suitable for hearing by video or audio link (see para 5.1(c))
If the defendant does not agree with the position on directions then they must file and serve a notice in response within 14 days of the reactivation notice.
Silence on how this works with PCOL cases!
For cases issued after 3 August and stayed or issued after 23 August (see para 6.1)
No reactivation notice is required. There is however a requirement to serve a notice (no name for it) demonstrating:
- the landlord’s compliance with the pre action protocol (at 6.1)
- what knowledge the landlord has about the effect of the pandemic on the tenant and their dependants
That must be served 14 days before the hearing and the landlord must bring 2 copies to the hearing.
All new accelerated possession claims (see para 6.2 and 1.7))
- The Claimant must file with the claim form, for the court to serve with the claim form, a notice setting out what knowledge the landlord has as to the effect of the Coronavirus pandemic on the Defendant and their dependants.
PD 55C does not require that the notices referred to above need a statement of truth to be added. A template has not been and will not be produced due to the temporary and emergency nature of these provisions. It seems a simple word document template setting out the court heading (parties names and claim no) and listing the required information will suffice.
Existing possession trial dates already fixed for after 23 August?
A trial date set before the stay came into force on 27 March 2020 is vacated and the claim stayed unless a reactivation notice, updated rent account (if an arrears case) and updated draft directions or a notice confirming none needed and the trial date can proceed are filed and served not less than 42 days before the trial date.
There had been a rumour that the court would relist cases by priority type (e.g. ASB or extreme rent arrears) and some senior judges have already made orders asking for this type of information. However, that is not a requirement of the new PD. Unless then local judges ask for this information (and if they do it is arguable whether they can, in fact, take this into consideration) - the only information you are asked to provide is as above (about the tenant’s health and circumstances and the arrears). No one type of case will now get priority. Neither does any type of landlord – social or private sector.
Abolishing s21 notice and hearings out of hours or weekends?
This may not be the end re s21 notices and ASTs – the Government may separately bring forward legislation to abolish them temporarily or permanently as Shelter and the London mayor are urging/campaigning.
Equally the court listing out of hours hearings as per the court service reopening plan (see our earlier e-briefing) is still a possibility - that is one for each court’s senior judge and the local court users as it does not require any change to the court rules or legislation.
It seems we should expect most possession hearings to be in person rather than virtual hearings unless and until solicitors are instructed by a tenant.
NSPs and s21 notices – notice period
Just a reminder the requirement to give 3 months’ notice period continues until the 30 September 2020. That is a requirement of the Coronavirus Act 2020 so is not affected by changes to the court rules.
For more information
Contact Helen Tucker.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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