Re: COVID-19 update on possession hearings
Following the government announcement on Monday 23rd March 2020, we thought it prudent to update you on the recent guidance issued in relation to housing possession proceedings in England and Wales. This update is accurate as at 31st March 2020. This is a constantly evolving situation and it is likely that there will be further updates before things return to normal. This is not to be treated as legal advice and before taking any particular course of action, you should always consult with one of our specialist lawyers. We are operating remotely and are available as normal by phone and by email.
You may be aware that certain emergency laws have been passed in light of the COVID-19 situation. As a result, a number of important changes have been made to the law around housing possession cases. The reason for this is mostly to protect tenants from being made homeless during the current ongoing public health emergency. I set out the general changes to the law below.
The Lord Chancellor and the judge in charge of the civil courts have brought in to force temporary change of the court’s rules in order to prohibit imminent evictions and delay possession proceedings. This temporary new rule is effective as of 27th March 2020 and sets out the following changes:
- All proceedings brought for housing possession and all proceedings seeking to enforce an order for possession that has already been made will be delayed for a period of 90 days from 27th March 2020;
- Any claims for an injunction in relation to housing will not be subject to this delay; and
- The Practice Direction will cease to have effect on 30th October 2020.
The effect of this is that it will be possible to start a new claim for possession of a property, but that nothing will happen in respect of this claim for at least 90 days. This could be extended depending on how the public health situation develops in the meantime. Once claims do start progressing again, there is likely to be substantial delay as the courts work their way through the backlog that is going to arise.
The courts have all been taking their own local approaches to adjourning possession proceedings which were already underway. This piecemeal and inconsistent approach has now been superseded by the new direction from the central judiciary. Any court proceedings currently ongoing will be adjourned for the next 90 days. After that time has elapsed, the courts will pick these cases back up. Again, there are likely to be delays as the courts work their way through the backlog that will accumulate.
In addition to this, the homeless charity Shelter has provided some guidance on their website in relation to a number of property issues that landlords and tenants may encounter. We set out an outline of this guidance below, but please visit www.england.shelter.org.uk/housing_advice/coronavirus for more information.
Please note that, regardless of the coronavirus pandemic, any eviction must still be legal. A tenant must be provided with the correct notice and a landlord may not prevent the tenant from gaining access to the property. If a tenant receives notice to evict from their landlord between 26th March 2020 and 30th September 2020, they will be entitled to three months’ notice before the landlord may enforce this through the courts in accordance with the new Practice Direction. This is regardless of the notice that would normally have to be given under the particular procedure taken by the Landlord. This would normally usually be two months for proceedings under section 21 of the Housing Act 1988 or between two weeks and two months for proceedings under section 8 of the Housing Act 1988.
If the landlord has already made their application to the court, the proceedings will be delayed by 90 days in accordance with the Practice Direction. This also means that a landlord cannot currently make an application to the court for an order to have a tenant evicted.
If a tenant is struggling to pay rent, the recommendation is that they contact their landlord to discuss this. Landlords might decide to reach out to their tenants in light of the current situation to discuss coming to an arrangement. Currently, there is no obligation on landlords to offer a rent reduction or any pause on rental payments. If landlords do offer a rent payment holiday, it may be on the basis that rent is paused and the unpaid sums for this period are recovered in the future. Landlords may be able to take advantage of a mortgage holiday. All major mortgage providers have agreed to provide up to three-month mortgage holidays for anyone who is experiencing financial hardship as a result of the current public health emergency.
It is likely that those who were planning on moving home will have to postpone the move. Tenants might also try to negotiate with their current and future landlord to alter the start and end dates of their respective tenancies. It will be difficult to enforce breaches of contract that arise as a result of the current public health emergency. It is likely that the party in breach will be able to rely on this situation to avoid liability. Tenants who wish to end their tenancy early in light of the current situation may only do so if their contract has a break clause or if this is agreed with their landlord.
Mortgage arrears and repossession
Following an announcement by mortgage lenders, it is now the case that they will not apply to the court for repossession for 3 months starting from 19th March 2020. For those struggling to meet their mortgage payments because of coronavirus, they will also allow delay of payment for 3 months. However, mortgagees should be aware that this may mean an increase in their mortgage payments after the expiration of the 3-month period.
Mortgagees are advised to check whether they have insurance which will help them fund mortgage payments, and to speak to their independent mortgage providers to ask for support.
Landlord access to properties
Landlords should postpone any visits to their tenant’s properties unless they are essential. Non-essential visits include routine visits to the property and any viewings carried out towards the end of the tenancy. Landlords should note that their responsibilities to repair still remain throughout the coronavirus outbreak. Tenants should be asked to report any repairs by phone or email and landlords should try to have the problem fixed if it is possible and reasonable to do so.
We understand that these are uncertain times for landlords and tenants. We will be more than happy to advise you on any questions you may have in relation to this area of law, so please do not hesitate to contact us if you need any assistance.
GARNER & HANCOCK