Landlords Lockdown Woes Continue

Nicola Coward – Partner and Dispute Resolution Solicitor

 

In response to the Coronavirus Pandemic and the national lockdown which began on 23 March 2020, legislation was passed to deal with residential tenancies. Whilst the Coronavirus Act 2020 extended the length of notices to be served on tenants before possession proceedings could begin it did not restrict the rights of landlords to continue with existing proceedings.

The Court stepped in and amended the Civil Procedure Rules 1998 (‘the CPR’) making it clear that all proceedings for possession, including warrants to enforce possession orders, were stayed. Initially this was until 25 June 2020 but was subsequently extended on two occasions with the stay eventually being lifted on 20 September 2020.

Then came lockdown 2.0 on 5 November, just days after the stay had been lifted. Anticipating that further legislation would be passed or, alternatively, amendments to the CPR would be made, landlords and practitioners waited to see what the new restrictions would be. But nothing happened. Calls to the Court Bailiff were met with an unsatisfactory response that they were ‘waiting for further guidance’. Until then, no warrants would be enforced.

A letter sent by the Lord Chancellor to the High Court Enforcement Officers Association was circulated. In the letter he requested that Bailiffs refrain from enforcing possession orders during the second lockdown and, in addition, asked them to abide by a ‘winter truce’; essentially confirming that no evictions would be undertaken during the Christmas and New Year period (11 December to 11 January). Bailiffs agreed.

It was the view of practitioners that this ‘request’ had no legal basis and that Bailiffs would be acting unlawfully. Finally, in response to the growing concerns about the legality of the request, the Government has brought in new regulations, The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) Regulations 2020 which came into force on 17 November 2020. Unsurprisingly, these Regulations prevent bailiffs from enforcing warrants of possession until, for now, 11 January 2021 (unless the period is further extended). There are a number of exceptions. For example, if the arrears of rent at the date of the Possession Order were at least 9 months (excluding any arrears arising from 23 March 2020) the possession order may still be enforced. Unfortunately, the Court Bailiffs are still deciding how these Regulations will be enforced and, following a call to the Court yesterday, the same response was received, “We are waiting for further guidance”.

It is hoped that this ‘guidance’ will be provided promptly; currently, no-one knows what further action, if any, a landlord needs to take to show that their possession order falls within one of the exceptions. It is unlikely the Bailiff will trawl through the Court file to ascertain this information – it is also unlikely (but not impossible) that a landlord will need to apply to the Court seeking confirmation that the warrant can be enforced.

What is apparent is that landlords who have obtained possession orders are in for a long wait before they will be able to physically recover possession of their property – even if they can bring themselves within one of the exceptions.

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