As recently reported, overall arrangements for possession proceedings was published (the overall arrangements) which also referenced further guidance which was to follow. This included a “pre-action plan” to be complied with by landlords before serving a notice or commencing proceedings.

That further guidance has now been published and here we attempt to consolidate everything.

It should be noted, serving notice and commencing proceedings has now become exceptionally complex and some may prefer to use a solicitor until at least the end of March 2021.

We will also recap on notice lengths and also go through claiming possession through the court (including existing claims that need reactivating).

Guidance and Documents Referred to on This Page

Understanding the possession action process: A guide for private landlords in England and Wales

Pre-Action Plan: Managing arrears and avoiding possession claims

Technical guidance on eviction notices

Overall Arrangements for Possession Proceedings in England and Wales.

Pre-action Plan – Before a Notice is Served

The overall arrangements provides:

No new claim for possession should be started without careful efforts to reach compromise.

The non statutory Pre-Action Plan: Managing arrears and avoiding possession claims has been published by the NRLA. There is no commencement date mentioned in the document nor in the overall arrangements so we assume it has started with immediate effect.

It should be noted at the outset, the Housing Act has not been amended and so despite the requirements set out in the pre-action plan, any requirement to give possession by the court remains. However, this is all about how quickly it gets to court and avoiding adjournments by failing to follow the pre-action plan.

The pre-action plan contains “golden rules” for dealing with rent disputes and the document provides:

Landlords should not issue notice without fully exploring the above options and tenants should actively engage with their landlords.

The golden rules are:

  • communicate with the tenant
  • establish if vulnerable
  • signpost the tenant to advice
  • agree an affordable payment plan
  • provide clear rent statements (3 month periods)
  • consent for direct payments where there is a Universal Credit claim.

The pre-action plan then goes on to provide five steps that are to be taken before notice is issued (including under section 21 and section 8, ground 8):

  1. The landlord should write to the tenants outlining the reasons possession is being sought. If possession is for arrears, then this arrears pre-action plan should be followed. A failure to do so could result in your case being adjourned, which could delay it.
  2. Landlords must declare if they know of any matters that should be taken into consideration, including if tenants, their dependants, or other occupiers have been affected by coronavirus and, if so, how this has impacted on their ability to pay rent.
  3. Both parties should consider whether it is possible to resolve issues between them through discussion and negotiation, rather than formal legal proceedings (alternative dispute resolution).
  4. The landlord should consider any representations received, and if proceeding with a claim, include any information that has been provided relating to the impact of coronavirus on the tenant’s ability to pay rent.
  5. Landlords must keep copies of all documentation and a record of all correspondence or contact with the tenant, throughout the pre-action process, and provide the information to the court should proceedings be necessary.

Serving Notice

After compliance with the pre-action plan and if you still need to serve notice, you can do so. This can be either a section 21 or section 8 where the tenancy is an assured shorthold tenancy.

The government has published some non-statutory guidance: Technical guidance on eviction notices which is worthy of reading if you are preparing to serve a notice.

Section 21

In both England and Wales, the length of a section 21 notice is at least six months. You should also add at least four further days for delivery of the notice.

You can download a section 21 notice from our possession notice wizard.

Section 8

England and Wales have different lengths of time depending on what ground is to be used.

Where rent arrears grounds only are being used (grounds 8, 10 and 11), the length of notice is 6 months in Wales and in England, if the arrears are less than 6 months, 6 months notice but if arrears are greater than or equal to six months, 4 weeks notice is required.

For ground 14 (anti-social behaviour), the length of notice is now simply four days for delivery (basically proceedings cannot be commenced before the tenant has received the notice). As of 29 September 2020, this applies to both England and Wales.

For the dates required on other grounds, please see this useful table on the .gov website (England).

Our articles about the notice length changes are available here:

England

Wales (latest article applying from 29 September 2020)

You should also add a further four days on to the length of the notice for delivery.

Commencing or Reactivating Court Proceedings

The courts reopen for possession claims on 21 September 2020 although claims can be made before then – it’s just that they will be stayed before that date.

To avoid repetition, please see Understanding the possession action process: A guide for private landlords in England and Wales on the .gov website for full details. It’s very comprehensive.

As a very brief summary though, the following applies.

Existing Claims

Existing claims have different rules depending on the stage they were/are at in the process.

Under the overall arrangements, claims should only be reactivated after careful efforts to reach compromise:

No claim for possession should be re-started without careful efforts to reach compromise.

Furthermore, the pre-action plan provides:

If payment of rent is resumed by the tenant, or the tenant’s circumstances have changed and a reasonable plan to repay arrears is agreed, then the landlord should postpone … reactivating an existing claim, whilst the tenant meets the terms of such an agreement.

Should the tenant break the terms of the agreement, the landlord should inform the tenant if they intend to … resume proceedings. It is important that both landlord and tenant, fully engage in the court process thereafter.

Finally, the understanding possession action guidance issued by MHCLG provides:

Wherever possible, you should ensure that you pursue other options to resolve your situation first. This will most likely be quicker and cheaper. You should communicate with your tenant directly to discuss problems such as rent arrears or anti-social behaviour as openly and frankly as possible, and to try to find a solution which works for you both.

And continues …

Where possible and appropriate, we would encourage landlords to consider alternative dispute resolution such as mediation to reach a mutually acceptable agreement to resolve disputes, without the matter needing to go to court.

All of these matters are likely to be considered when the court is looking at listing the many backlogged hearings.

Outstanding Warrant for Possession

Any outstanding warrants should be automatically rescheduled although it might be worth contacting the county court to check it’s still in the system.

If you no longer wish the bailiff to attend, you should make contact using the information you will have previously received.

If you have a possession order but not yet applied for a warrant, you will be able to do so from 21 September 2020. You can apply for a warrant up to six years from the possession order.

Claims Made Before 3 August 2020

Claims made before 3 August 2020 will not be listed and instead will require a reactivation notice in order to start it up again.

A sample reactivation notice can be found here.

You must issue the reactivation notice by 4pm on 29 January 2021 otherwise the case will stayed and a formal application to restore required.

Claims Made on or After 3 August 2020

Any claims made since 3 August 2020 have special requirements to be included with the claim about what information you know about the defendant and covid-19. These claims will be listed in due course.

New Claims

Same as restarting existing claims, the combined guidance and pre-action plan makes it clear that making a new claim for possession through the court should be a last resort.

Overall arrangements:

No new claim for possession should be started without careful efforts to reach compromise. Regulations both in England and in Wales provide (extended) notice periods before some new claims may be commenced.

Pre-action plan:

If payment of rent is resumed by the tenant, or the tenant’s circumstances have changed and a reasonable plan to repay arrears is agreed, then the landlord should postpone issuing new court proceedings, … whilst the tenant meets the terms of such an agreement.

Should the tenant break the terms of the agreement, the landlord should inform the tenant if they intend to start … proceedings. It is important that both landlord and tenant, fully engage in the court process thereafter.

Understanding possession action guidance:

Wherever possible, you should ensure that you pursue other options to resolve your situation first. This will most likely be quicker and cheaper. You should communicate with your tenant directly to discuss problems such as rent arrears or anti-social behaviour as openly and frankly as possible, and to try to find a solution which works for you both.

Where possible and appropriate, we would encourage landlords to consider alternative dispute resolution such as mediation to reach a mutually acceptable agreement to resolve disputes, without the matter needing to go to court.

It is important that you engage with your tenant and try to find out more about their personal circumstances. If you make a claim for possession, the court will ask you for information to determine whether your tenant is vulnerable; for example whether they have been affected by the coronavirus pandemic (including if they are clinically extremely vulnerable or have been shielding) or if they are in receipt of welfare benefits. The court may not be able to progress your case until you provide this information. If your tenant is struggling as a direct result of the COVID-19 pandemic, you should consider if you could delay seeking repossession of your property and find a way to support your tenant until such a time as they might be better able to move to another property.

See this part of the understanding possession action guidance for if the tenant is in arrears or is engaging in anti-social behaviour.

Applying for possession

When making an application to the court, the recently published Practice Direction 55C must be followed which now includes the requirement for a notice about what is known about the tenant’s circumstances and covid-19.

For all claims, the notice is to be served on the tenants at least 14 days before the hearing date and two copies taken to the court.

For accelerated claims, the notice is to be attached to the papers when submitting the claim.

See the understanding possession action guidance here and also our article here.

For court forms, see our court form wizard here.

Hearings

Cases are going to be slow to get dealt with whilst the six month backlog gets cleared. You should expect long delays. The same provisions will apply for new and existing claims.

The rule that guaranteed a hearing within 8 weeks of a claim being issued has been temporarily removed.

Accelerated possession claims after a section 21 notice can continue to be dealt with without any hearing and they will be referred to judges at a “manageable frequency”.

Several templates that as we understand it are to be sent to claimants and defendants can be seen here.

Covid-19 Marked

Cases can be “Covid-19 Marked” by either party. The landlord can mark it as such if they can show they have been severely affected by the pandemic. As too can the tenant. Information provided in the notice about what information is known about the tenant and covid-19 will be used for marking.

For more information about Covid-19 marking, see the .gov understanding possession action guidance.

Priority of Listings

Hearings will be listed by priority.

Domestic violence and arrears of at least 12 months rent are factors for making a case priority. It will also be a consideration if the case has been Covid-19 marked.

See the overall arrangements document for more information on priority listing.

Hearing Dates

Once a claim is listed for hearing, you will be sent a review date and a substantive possession hearing date. The review date will be at least 28 days before the possession hearing date.

The Review

You will need to be available on the review date (by telephone or face-to-face).

At least 14 days prior to the review, you will be required to email the court at the address provided. The email must include the following:

  • An electronic copy of all case documents to the court, including the claim form and particulars of claim, information about how your tenant has been affected by coronavirus and the tenant’s defence, including whether they have marked the case as being affected by COVID-19. You must confirm that you have provided relevant information about your tenant’s circumstances to the court. This includes information about the effect of the pandemic on your tenant and his or her dependants, and about their vulnerability, disability and welfare benefit position, with specific reference to those who may have been shielding.
  • Confirmation that you have provided a copy of all of the information about the case to the tenant, in hard copy and electronically if they have provided their email address.
  • Confirmation that you are available on the day of the review to discuss the case (by telephone or face-to-face), with the tenant or duty scheme (or other) adviser

The judge may stay or adjourn the case if an agreement has been reached between you and your tenant. If an agreement has not been reached and your paperwork is in order, the judge is likely to make an order setting out the steps to be taken by you and by your tenant, to provide the court and each other with the evidence and information necessary to allow the substantive hearing to take place. If your documents are not in order the judge may dismiss the claim (with liberty to apply for reconsideration at an oral hearing) or may give directions.

Please see the understanding possession action guidance for more information.

Substantive Hearing

This is the usual hearing that would take place and where the claim will hopefully be dealt with and possession ordered.

You should bring copies of all the paperwork relevant to your claim to the possession hearing. This includes 2 copies of the notice which you provided with your claim setting out the impact of the coronavirus pandemic on your defendant.

Have in mind, because of the backlog, there will be a possibility that the claim will be further adjourned at this hearing. It could be dismissed entirely if the paperwork is not in order.

More information is available in the understanding possession action guidance.

Warrant for Possession

After a possession order, a warrant will need to be applied for. It’s likely to take some time for a bailiff to attend. The bailiff must provide the tenant with at least 14 days notice of the eviction.

The government has announced restrictions on enforcing warrants in areas of local lockdown and during the Christmas period.