Landlords have launched a legal challenge against a ban on bailiffs evicting tenants in England, claiming the policy is a farce and unlawful.

Their lawyers claim the government has rushed in new regulations to try to thwart their request for a judicial review of the ban.

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 confirm that renters who had arrears of seven months or more on March 24, 2020 can be evicted if a landlord or letting agent has a court issued possession order.

Lawyer David Smith, a partner at JMW Solicitors, claims the regulations issued on Monday (November 16) were in response to pre-action documents filed on November 6.

We have previously reported earlier this week on the new legislation banning attendance at a property to carry out an eviction. Our housing timeline has also been updated.

Government policy is a ‘complete farce’

“As the courts reopened in September everyone expected there to be a movement to start processing every aspect of stalled court possession process, from commencement of proceedings right through to enforcement of orders. Rather than the great cliff-edge of evictions that had been talked of I was expecting it to be rather more like a large behemoth slowly unlimbering itself and getting up to speed,” he said in a blog for the firm.

“That did not in fact happen though. Initially in areas of local lockdown, then in areas subject to tier 2 and tier 3 lockdowns it emerged that there was to be no enforcement of warrants or writs of possession. Like many people I initially assumed that this was in a set of regulations somewhere. However, I could not find this regulation and slowly the realisation dawned on me that it wasn’t in any piece of legislation.

“In fact, this was all being done based on an internal court service policy that nobody was prepared to publish and due to a letter sent to the High Court Enforcement Officers Association by the Lord Chancellor.

“However, as a summary the Lord Chancellor simply has no right to go round deciding which court orders can or cannot be enforced and against whom. If government ministers could do this then there would be little need for there to be a commission looking at Judicial Review as government ministers could simply decide to ignore orders they didn’t like!

Eviction ban illegal, claim lawyers

“As a result of the situation I was instructed to send a pre-action protocol letter threatening Judicial Review to the Ministry of Justice. This was sent on Friday 6 November and sought an answer by the following Friday.

“The government lawyers acknowledged the letter and promised a response by November 19, a week later than asked. Meanwhile, the legislative drafters were clearly burning the midnight oil as they sought to rush out some regulations to make the unlawful process lawful.”

Lord Chancellor Robert Buckland has written to bailiffs asking them not to execute court orders relating to housing issues until at least January 11, 2021.

Smith also argues that as the new regulations only apply to England, so landlords in Wales can carry on with instructing bailiffs to remove tenants or the ban is illegal across the country.

“Presumably, the Welsh assembly will now hurry out their own regulations,” he said.

What the eviction rules say

Under the current COVID-19 rules, landlords can evict tenants who fall behind with their rent.

But since August 29, 2020, landlords must give six months’ notice to tenants who owe less than seven months’ rent if they have an assured shorthold tenancy agreement.

Landlords can be forgiven for failing to keep up with seemingly ever-changing notice periods – and here is the list of official dates so far:

Date Landlord notice
Before March 26, 2020 Two months
March 26, 2020 – August 28, 2020 Three months
August 29, 2020 onwards Six months

A rider has always applied to landlords wanting to take back a home from tenants in severe rent arrears, but the new regulations have clarified what this means for the first time.

“The regulations simply ban any person from attending premises to execute a writ or warrant of possession,” said Smith.

“This expires automatically on January 11, 2021. This means that for most landlords, even if they secure a possession order they cannot make use of it until after that date. However, they should be able to request a date and have one put in the diary for after that date as the regulations simply prevent the execution of a warrant or writ, not its preparation.

“This also means that the short gap between the end of the current lockdown on 2 December and the start of the Christmas stay on 11 December, during which some landlords may have been hoping for an eviction to be carried through has gone.”

The Ministry of Justice has yet to comment on the judicial review application.

PropertyTribes

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