In the case of Marshall (Arkin) -v- Marshall & Another, the Court of Appeal was asked to consider the lawfulness of PD 51Z. The judgment was released on 11 May 2020. In short – the blanket stay is lawful, and there is minimal scope for it to be lifted in individual cases.
The Court of Appeal concluded that the PD 51Z was lawful because:
The Court of Appeal also concluded that a Judge does have inherent power to lift the stay in individual cases. However, there will be almost no circumstances where the use of this inherent power would be justified. The nature and purpose of the stay are on the grounds of public health. It is a blanket stay and so does not distinguish between particular circumstances. Therefore, it would not be right to “allow a party to rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case”.
The Court of Appeal said that, whilst there may be circumstances in which it would be proper for a judge to lift the stay, this is only likely to be if the stay itself poses a danger to public health. The Judges said they would be very critical of any party making an application to lift the stay for anything other than “exceptional circumstances where there is a danger to public health”.
Issuing possession claims against trespassers – any change?
Since its initial draft in March 2020, PD51Z was amended slightly on 20 04 2020. It is now clear that new possessions claims can be issued, but they will immediately be subject to the blanket stay.
Separate government guidance does, however, also state that all landlords should have a “very good reason” to issue a new possession claim during the stay (e.g. anti-social behaviour is arguably a very good reason; only certain types of rent arrears might be). Ensure you actively consider and record your decision as to what a “very good reason” is in each possession case sent for issue whilst this guidance is in force.
From 20 April 2020, the stay now excludes:
What remains is whether trespass possession claims against named defendants (e.g. persons left behind or licensees in hostels after the tenant/licensee has either served or been served with a Notice to Quit) can be pursued and different views are circulating.
However, our view is that unless the trespassers are truly “unknown persons”, the possession claim would probably still be subject to the blanket stay. The only way to find out is to issue a claim and see what your local Judge rules. Either
There is little to lose by issuing as long as the landlord can show (whilst the 28 03 2020 Government guidance remains in force) a “very good reason” for doing so (e.g. ongoing ASB).
Do note it is almost certainly an abuse of process to describe a Defendant as “unknown” in order to get a case heard during the stay when in fact their identity is known to the landlord, e.g. the trespasser was a licensee whose licence has been ended by an NTQ.
For more information contact Rebecca Sembuuze or Helen Tucker.
Helen Tucker
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