Written by Nikki Coward, Partner and Dispute Resolution Solicitor with assistance from Beth Reid, Trainee Solicitor
Some may say that the housing crisis has been exacerbated as a result of the pandemic; what is clear is that the effect on landlords and tenants alike has been devastating. To give you an insight as to my experience, it is necessary to give a brief chronology of the legislation and rules brought in by the Government and the Courts specifically in relation to the residential sector.
Following the first National lockdown on 23 March the Government took steps to increase the notice periods required for service of notices on tenants. This did not affect notices that had already been served pre-lockdown. Nor did the Government’s response prevent landlords from issuing possession proceedings and taking steps to evict tenants where they had already obtained a possession order from the Court. To protect public health at a time when everyone was ordered to ‘stay at home’ the Court introduced a stay of all possession proceedings, including the enforcement of warrants for possession (which are warrants that bailiffs use to carry out evictions). There was nothing preventing a landlord from issuing a claim where the notice period had expired; it just meant that it would not be dealt with by the Court.
The issue I have come across in this regard is that some landlords, who had served valid notices, thought that they were unable to issue their claim due to the stay and have now found that the period for issuing a claim under the Housing Act 1988 has expired. They are now forced to start the procedure all over again, and are faced with the new extended notice period. This can be burdensome for those who may a) rent to a troublesome tenant b) rent to a tenant is in significant arrears or other breach of agreement or c) simply need to recover possession of the property so they can live in it themselves due to a change in their own personal circumstances.
This stay was lifted on 20 September 2020. Many changes have been introduced by the Court to deal with the huge backlog of stayed claims and the anticipated rush of new claims. It is my view that these ‘additional steps’ are in place to stem the flow of cases through the Court system. Not only could they ‘trip up’ unsuspecting landlords who are unfamiliar with the new procedure (and where to look for them) but, for those landlords and tenants who have instructed legal representatives to act for them, they increase costs (quite substantially) and further protract what can already be quite a lengthy matter.
For example, unsuspecting landlords may not be aware that they have to take steps to re-start stayed claims. Other landlords may be unaware that ‘new claims’ have to contain additional information. The Courts will undoubtedly scrutinise the paperwork and simply strike out those claims that don’t comply, again forcing landlords to re-start the procedure. This is evident from the additional hearing that has been inserted into the procedure, hearings for the Judge to simply review the papers and decide whether it can proceed to a final hearing, but requiring further documents to be prepared and sent to the Court as well as discussions between the parties.
The Bailiffs were slow to deal with warrants for possession following the end of the stay due to the tier system that had been put in place. And then came lockdown 2.0 on 5 November 2020. The only change brought into effect by the Government relating to possession proceedings was the further ‘stay’ of enforcement of warrants for possession which now expires on 21 February 2021. Importantly, however, there is one significant exception to this general rule; namely rent arrears. Initially, a landlord had to prove that a) the possession order was obtained on the ground of rent arrears and b) at the date of the possession order those arrears amounted to at least 9 months (excluding any arrears during the period from 23 March 2020). In essence, the Government was looking at those tenants who had failed to pay their rent pre-pandemic. This was later amended to remove the ‘pre-pandemic’ condition and reduced the arrears to 6 months, swinging the pendulum back in favour of landlords who were faced with rent arrears that had accrued at any time, including as a result of the pandemic.
I have a possession order which was granted in December 2019 (some 4 months prior to the first national lockdown) where the arrears already exceeded 1 year. An application to the Court was made shortly after these new regulations were brought into effect in November 2020 to authorise the bailiffs to carry out an eviction. I am still waiting for that application to be seen by a Judge. I have been calling the Court every week for an update. I have recently been informed that priority is now being given to reactivating stayed claims rather than focusing on enforcement of warrants of possession.
The main focus during the pandemic has been to protect residential tenants and to keep them in their homes for as long as possible; and quite rightly so. We must not forget that many tenants are faced with the prospect of losing their home through absolutely no fault of their own. Many have faced job losses or a significant cut in their income and yet are still bound by the terms of their tenancy agreement to pay their rent. Whilst some landlords have been able to reach an amicable solution with their tenants by agreeing a reduction in rent (and I have been involved in those successful discussions and agreements) there are cases where this has not been possible. These landlords are receiving no income. Not all landlords have huge portfolios. Many landlords I act for have one additional property and rely upon the rent for their own income; indeed, many may have a mortgage on the property that still needs to be paid which puts them into financial difficulty.
What is clear is that the rights of landlords and tenants are, at present, so finely balanced and I am in no doubt that we will be faced with ongoing difficulties in the Courts for some time. I cannot see the backlog of cases being cleared quickly, especially if new claims are being issued daily. As I stated above, the new procedures that have been brought into effect are a way to fillet the cases and throw out those that may not strictly comply, thereby relieving some of the pressure on the Court system.
I fear that we will be dealing with the fall out of this pandemic for many months to come. As is so often the case, it is those who seek and obtain good legal advice from experts that will be best able to navigate such turbulent waters”