Reactivation of repossession proceedings: COVID-19 pandemic
At the end of September (2020), the temporary stay granted in possession proceedings finished. Since that date, courts have resumed processing cases. However, they are likely to remain busy and have backlogs of casework, due to the effects of the pandemic.
If you are looking for further information about reactivated claims and how the court processes could affect you, please read on. Below, we summarise how applications and defence against eviction and repossession will work in the interim period until spring 2021. The information applies to England and Wales.
The stay (temporary suspension) of repossession proceedings including appeals ran from 27th March 2020 to the end of September 2020. During those six months, the courts froze applications for evictions initiated by landlords against tenants, as well as those brought by mortgage lenders against owner-occupiers in payment arrears. While these claims were on hold, judges issued case directions only with the specific agreement of both parties, i.e. both the lender and homeowner – or the landlord and tenant.
Interim period to March 2021
Although the majority of possession claims against tenants and some against homeowners can resume from autumn 2020, interim court rules apply until 28th March 2021. Lenders, landlords and licensors must now follow different guidelines depending on the date of filing the claim.
Landlords and lenders who obtained a possession order or warrant before 27th March 2020 do not need to use a reactivation notice.
Claims initiated before 3rd August 2020
Suppose there was no possession order before 27th March 2020. In that case, claimants who wish to proceed have to send a reactivation notice to the court office. Significantly, they must declare what effects the Coronavirus pandemic has had on the defendant and his or her family. If the claim is for rent arrears, it is necessary to include an up-to-date account.
Also, they must submit reactivation notices at least six weeks prior to the hearing and no later than 29th January 2021. Otherwise, court officials will stay (or freeze) the claim again. Should claimants want to continue, it will be necessary to apply to have the stay lifted.
Reactivating claims that already have case management directions
If the court issued directions (i.e. case instructions) before 20th September 2020, claimants should apply attaching a copy, along with:
- New dates for compliance, taking the stay period before 20th September 2020 into account.
- Either a draft order with additional or alternative directions for a new hearing date, or confirmation that new directions are not necessary because it is possible to meet an existing hearing date.
- A written statement of whether the hearing can be via video or audio link.
Claimants who do not meet all the above requirements by 29th January 2021 will see their claim(s) suspended.
If the tenant or the owner-occupier does not agree with any of the above, he or she has fourteen days from receipt of the reactivation notice to file and serve a defence.
Restarting claims for possession made from 3rd August 2020
For more recent claims, reactivation notices are unnecessary if claimants state what they know about the effects of the pandemic on the defendant (and family, if applicable) to the court at least two weeks beforehand, with a copy to the defendant.
Similarly, social landlord claimants must furnish two copies of a notice detailing compliance with the Pre-action Protocol for Possession Claims by Social Landlords.
An accelerated possession procedure is in place for shorthold tenancy agreements. In the form, landlords state what they know about the impact of the pandemic on the tenant and any dependants.
Forms and guidance
Homeowners can find out more about property possession applications on the gov.uk site. Published resources include reactivation notices, notices of review and further detail on possession hearing dates. Courts do not levy fees for filing these defendant’s notices.
Extra guidance to protect mortgage borrowers
Owner-occupiers have some extra protection under recommendations published by the Financial Conduct Authority. Running to nineteen pages, Section 7 of the FCA guidance stipulates that repossessions will not resume until November. Except in exceptional circumstances – such as requests by customers – lenders ought not to apply for (or execute) a possession warrant if the borrower or a member of the household living at the property is self-isolating. The same stipulation applies when lockdown measures are in force.
However, a mortgage lender may seek to enforce a warrant if the mortgage customer or household member affected has access to alternative accommodation to self-isolate or comply with the lockdown. Also, mortgage providers are to inform customers of the possible financial consequences of suspending repossession and remaining in the property, as applicable.
All parties should receive a minimum of twenty-one days notice of the review hearing for cases listed or relisted until the end of March 2021. Court attendance is not mandatory and there is no fee for the review hearing.
During the interim period, the usual timescale of eight weeks from application to substantive hearing no longer applies. Instead, until 28th March 2021, courts could list hearings up to three months in advance. Some hearings might take place in temporary court buildings.
Procedures require mortgage lenders to provide an electronic bundle of documents to the court. They must also confirm they have served a paper bundle on the defendant(s), with an electronic copy if acceptable to the same.
At the review hearing, judges will consider the documents and, if all is in order, the substantive hearing date will be at least twenty-eight days later. All parties have to attend the latter hearing in person, unless:
- They have agreed otherwise with the court, or
- Contingency measures are in effect, or
- The landlord is using the accelerated procedure to end an assured shorthold tenancy.
Conversely, in the event of irregularities, judges may dismiss claims – although claimants could apply for reconsideration at a subsequent oral hearing.
In particular, in the above circumstances, defendants should not agree to give up possession of the property without taking qualified legal advice.
Finally, under the court duty scheme, housing possession advice and assistance will be available at the review appointment and the substantive hearing. Such advice is not means-tested and could be in person, either at the court building or in a different location, or by telephone or video link.