Claims Update - August 2020

Nearing the End of the Stay on Possession Proceedings

On 27 March 2020 all new and existing possession proceedings were automatically stayed as part of the Governments response to Coronavirus. This was for an initial period of 90 days, which was then extended for a further period and is due to come to an end on 23 August 2020.

A new Practice Direction 55C to the Civil Procedure Rules 1998 has been published which comes into effect on 23 August 2020, and it sets out how the Courts will deal with possession proceedings, both new and already issued, until 28 march 2021 (subject to review). We will look at the requirements under the new Practice Direction in further detail below.

*Please note this doesn't include information on the requirements for Social Landlords, proceedings relating to an appeal or other aspects Practice Direction 55C covers. For full information please review the Practice Direction in its entirety HERE.

Claims Issued Before 3rd August 2020

• Any claims, where a possession order has not already been made, that were issued and stayed prior to 3 August 2020 will require a reactivation notice in order for the Court to list the case to be heard.
• The reactivation notice is not a prescribed form, however it must confirm that the party filing and serving the notice wishes the case to be listed, relisted, heard or referred to a Judge; and must also set out what knowledge the party issuing the notice has in relation to the effect the Coronavirus pandemic has had on the Defendant (tenants and guarantors) and their dependants. Filed and served, for the purpose of this document, is the requirement to provide the notice to court (file) and provide the notice to all other parties to the claim (serve).
• If the Claimant (landlord) is the party filing and serving the reactivation notice, and their claim is based on rent arrears, they must also provide with the notice an up to date rent schedule showing the previous two years rent payment history.

Claims Issued After 3rd August 2020

• A reactivation notice is not required for any claim that was brought on or after 3 August 2020. However, there are additional requirements that the landlord must comply with.
• The landlord is now required to serve a notice setting out what knowledge they have in relation to the effect that the Coronavirus pandemic has had on the Defendant and their dependants. This notice must be filed and served on all parties not less than 14 days before the hearing, and the landlord must take two copies of the notice to the hearing.

New Accelerated Claims For Possession

• Any claims for possession brought under Section 21 of the Housing Act 1988 which are brought on or after 3 August 2020 requires the landlord to file with the claim form a notice setting out what knowledge they have in relation to the effect that the Coronavirus pandemic has had on the Defendant and their dependants.

What This Means For Your Claims

The stay on proceedings is due to come to an end on the 23 August 2020, and we know what the requirements are in order to resume those cases that were stayed, however this isn’t going to be a quick process. The court will have a backlog of cases to be dealt with, including work other than possession proceedings, and they will also be working with reduced listings in order to maintain social distancing rules. The practice direction has also removed the requirement to list a hearing within 8 weeks of the claim being issued, so it would be prudent not to expect a hearing date to be set for at least two months after your claim being issued.

Whilst there is now a requirement for the landlord to provide information on the Defendants and their dependant’s circumstance in relation to Coronavirus in almost all cases, we do not yet know the extent the Court will expect a landlord to go in order to obtain that information. We do not know whether it will be sufficient for a landlord to state they have no knowledge, or whether the landlord would be expected to make reasonable attempts in obtaining that knowledge either before the hearing, before issuing proceedings, or before they serve a reactivation notice.

We would therefore ask that as part of your tenant contact process prior to submitting a claim to us, you attempt to obtain the required information from the tenants and any guarantors and provide details of any attempts made and the information obtained when a claim is submitted. Where a claim is already ongoing, we will make attempts to obtain this information directly from the tenant and any guarantors.

If you have a claim with us where proceedings have been issued prior to 3 August this year, we will be working through all claims in order to establish whether the claim is still required and issuing a reactivation notice, if applicable, on or after 24 August.

Please also note that the guidance published by the Government at the outset of the Coronavirus pandemic, that sets out what the Government would expect a landlord to do prior to taking legal action against a tenant in rent arrears, still remains in place and should be followed. As part of our claim assessment process, we will still require information on what steps the agent or landlord have taken to establish a suitable arrangement with the tenant in respect of any rent arrears.

Changes To Notice Periods In Wales

When the Coronavirus Act 2020 was introduced in March, it made provision to extend the notice period of both Section 8 and Section 21 notices to three months in England and Wales, for a relevant period ending on 30 September 2020. The Act also gave ministers the power to extend the three month notice period or the relevant period, or both.

The Welsh Government announced on 23 July 2020 that they would be extending the notice period from three months to six months with immediate effect, and this becomes applicable to any Section 8 or Section 21 notices served on or after 24 July 2020 (with the exception of Section 8 notices that specify grounds 7A or 14).

The reason behind the change according to the Welsh government is to further delay evictions during the ongoing Coronavirus pandemic.

The extended notice period is currently applicable for the remainder of the relevant period, which is due to end on 30 September 2020 however they do still have the power to extend the relevant period beyond that date.

What This Means For Your Claims

Whilst we do not know for definite whether the relevant period will be extended beyond 30 September 2020, there is a possibility that this may happen as the change to the notice period has come at such a late stage. We also do not know whether, if the relevant period is extended, the Welsh government will keep both notice periods at 6 months, or reduce the Section 8 notice period whilst leaving the Section 21 notice period at 6 months.

We have made the decision that, for the time being, we will only issue Section 21 notices on claims that we receive with the view that come 1 October 2020 we may be able to issue a Section 8 notice which is ordinarily only required to give 2 weeks’ notice if based on rent arrears, rather than 6 months’ notice. Should the relevant period be extended beyond 30 September 2020, we will review our processes again in-line with any extension.

If you require any further information on how your claim will be effected by this please get in touch with us via email at rentguaranteeclaims@barbon.com.