Possession Claims – Post the Covid-19 Moratorium

Having been in place since 27 March 2020, the moratorium is to be lifted after 20 September 2020! Here are our top ten points to watch out for:

1. Reactivate

A claimant who wishes to resume proceedings which were bought before 3 August 2020 must file a "reactivation notice" informing the court and the defendant in writing. Without this notice, the case will remain dormant.

2. Get Your Timings Rights

Make sure your notice periods are correct (note the increases in notice periods: six months for s.21 Notices and some s.8 rent claims and a variety of new periods for other grounds!) Also allow time for all stages: At least 14 days' notice of eviction is now required both in the County Court and in the High Court.

3. Watch Out for Expired Notices

Check your notices are still valid and have not expired pre-issue.

4. Take Careful Advice

Consider whether court proceedings are truly necessary. For example, for claims against lodgers (and other excluded occupancies) a possession order is not required and may be by-passed. As ever, any claim where an occupant can be brought within the arena of trespass, will avoid the delays of long notice periods.

5. Use Your Valuation

Take advice from your agent, valuer and solicitor (working together) as to whether a sale with vacant possession is desirable or not.

6. Highlight Priority Cases

The requirement for the court to ensure possession cases are listed within eight weeks of issue has been set aside. Instead, cases will be prioritised in accordance with the new guidance published by the Master of the Rolls Working Group as follows (those in bold being most likely to assist receivers):

• Cases with allegations of anti-social behaviour;
• Cases with extreme alleged rent arrears accrued (for charities this will be arrears equal to at least 12 months’ rent);
• Cases involving alleged squatters, illegal occupiers or persons unknown;
• Cases involving an allegation of domestic violence;
• Cases with allegations of fraud or deception;
• Cases with allegations of unlawful subletting;
• Cases of abandonment, non-occupation or death of defendant;
• Cases concerning authority allocated ‘temporary accommodation’.

Subject to the above, priority will be given to claims issued before the stay commenced. Receivers should, therefore, ensure that any letters sent to the court on their behalf clearly highlight in the covering letter any aspect relevant to prioritisation of the claim.

7. Provide Relevant Information

A claimant must provide the court with relevant information regarding the effect of the coronavirus pandemic on the defendant and their dependants. It is helpful to start collating this information at an early stage, so it can provided to the Court either when re-activating an ongoing claim or issuing new proceedings.

8. Watch out for Covid-19 Marking

Under a new facility for Covid-19 Case Marking the Court file will be marked to highlight any case that is, or is claimed to be, a direct consequence of Covid-19.  Be ready to provide evidence if the file genuinely should not be marked or indeed if there is a Covid-19 related impact that justifies swifter action.

9. Obligation to Seek Compromise

The Court has highlighted that no new possession claim should be started without careful efforts to reach compromise; so ensure you can demonstrate reasonable attempts to reach agreement. There is also a new independent facilitated negotiation / mediation pilot introduced for possession claims. It might be that sensible agreements for vacation can been more readily justified as a reasonable course for receiver to take in the current environment.

And Finally… Take Time to Plan!

Strategy is more important than ever! You do need to act promptly but rushing in may result in the claim failing.  Take time to get your ducks in a row.. remember… more haste, less speed!