Coronavirus – Enforcement rights against property

Update 02.07.2020

  • Practice Direction 51Z was introduced on 27 March 2020 and bought into action several new rules effecting property possession and enforcement proceedings.
  • Practice Direction 51Z granted a stay of all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession until 25 June 2020.
  • These rules were updated again on 25 June 2020 by the addition of CPR 55.29. The new provision will have the effect of extending the stay from 25 June 2020 until 23 August 2020.
  • CPR 55.29 will apply to proceedings that were stayed immediately prior to 25 June 2020 or that are brought between 25 June 2020 and 22 August 2020.
  • CPR 55.29 will not apply to the following claims
    • claims against trespassers to which CPR 55.6 applies;
    • proceedings under the interim possession order procedure;
    • an application for case management directions that are agreed by all parties; and
    • a claim for injunctive relief.

The Coronavirus Act 2020 ("the Act") has now received Royal Assent, and is in force. This brings into action several key points that affect both commercial and residential property.

Commercial Property

Prohibition on forfeiture

The Act prohibits landlords from forfeiting commercial leases for non-payment of rent (by peaceable re-entry or court proceedings) from now, until 30 June 2020.  It does not extend to forfeiture for other grounds.  The Act reserves parliament the right to extend that date in the future and only time will tell if that additional time is needed.  

These restrictions cover both business tenancies under Part II of the Landlord and Tenant Act 1954 (regardless of whether they have been excluded from sections 24 to 28) and more widely other interests which at this time we are interpreting to include sub-tenants, tenants at will and licensees.

This lifeline will help many commercial tenants with their sudden loss of cash flow, so that they can temporarily pause paying rent without the risk of forfeiture between now and 30 June 2020. There is no obligation placed on a tenant who takes this decision to show that their decision was caused by the Covid-19 pandemic.  However tenants must remember that their arrears are not written off by the legislation and they will need to come to an arrangement with their landlords to repay those sums when the protective period is over.  And, if a mutually acceptable arrangement cannot be found forfeiture may be the landlord's preferred option at some point in the future.

No Waiver

The Act encourages communication between the parties, and protects Landlords so that they can engage with their tenants without being deemed to have waived the right to forfeit.  A landlord or agent electing to do so should ensure any agreement is reached prior to 30 June 2020, in order to avoid waiving the right to forfeit for sums that have become due.

Ongoing Proceedings

In cases where a landlord has already issued a claim for possession on the basis of non-payment of rent the Court cannot now grant an order which allows for possession prior to 30 June 2020.

If an order has already been made in the High Court giving the landlord possession at an earlier date then the tenant can apply to have this date extended to a date no earlier than 30 June 2020. In such circumstances "the High Court must ensure that the tenant does not have to give possession of the property to the landlord before the end of the relevant period (30 June 2020)".

If an order has already been made in the County Court giving the landlord possession at an earlier date then the date mentioned shall now be treated as if it stated 30 June 2020.

Future Opposed Renewals

If a commercial landlord wishes to oppose a renewal of a business lease in the future then they will not be able to rely on any failure to pay rent during this period as grounds for doing so.

Residential Property

Under the Act, from today until 30 September 2020 (unless changed) all notice periods are extended to three months. This applies to both Section 8 Notices and Section 21 Notices. The longer notice periods do not apply to existing claims which have already been issued.

Prior to commencement of the Act, there had been speculation in the press that new possession claims based on rent arrears would be stayed altogether. Whilst this has not happened, and whilst trespasser claims remain unaffected by the new legislation, we anticipate that the Act and the general climate will influence the Court's behaviour in relation to such proceedings. In practice, judges may be cautious about making orders which could have an impact on public health. Where there are vulnerable individuals or minors occupying a property, it will be even more difficult for receivers to achieve an order for vacant possession. Further, where receivers do manage to obtain a possession order pursuant to Section 21, we expect judges to exercise their discretionary power, to extend the order for up to six weeks, much more often.

In addition, there is the ongoing practical impact of social distancing on possession hearings. The challenges posed by social distancing are heightened for possession hearings due to the practice of bulk listing such claims, often at 10 am. Prior to the Act passing, courts had already begun vacating possession hearings and re-listing these for dates in June. We anticipate the courts will continue to re-list hearings and that there will be inevitable delays in obtaining orders.