Residential Possession proceedings – the Story so far

Trinity housing law barrister, Tom Tyson, provides an update on possession proceedings in light of the Coronavirus crisis:

A week is a long time in politics, but 24 hours is a long time in a pandemic. Things have moved swiftly to regulate claims for possession of residential premises.  

Following the amendments to the Coronavirus Bill, which were passed, extending pre-action notice periods to 3 months: 

It is short and blissfully uncomplicated. It states in terms that ALL proceedings under Part 55 and all proceedings for enforcement by warrant or writ of possession are stayed for a period of 90 days. Claims for injunctive relief are not affected.  

What does all of this mean practically? 

  • The requisite notice before commencing proceedings, whether s. 8 or s. 21 Housing Act 1988; those governing secure, introductory and demoted tenancies, and those terminable by notice to quit must now be a period of 3 months. 
  • The notices served must be ‘read as if’ they state 3 months rather than 2.  
  • In order to obtain possession from the overwhelming majority of residential tenants olicensees, a court order for possession is required. 
  • Those proceedings which are already issued are automatically stayed, as they have to be brought using the mechanism of Part 55. 
  • A possession order, if not complied with by the occupier, must be enforced by a warrant of possession (county court) and writ of possession (High Court). 
  • All of the enforcement proceedings (i.e. the actual physical eviction of occupiers by bailiff or Sherriff) are stayed. 

How long? 

The stay lasts for 90 days. The Practice Direction remains in force until 30th October 2020.  

In practical terms, what is covered? 

Claims for possession in the private and public sector are stayed. Nothing further will happen for 90 days.  

Claims for possession against trespassers are also covered, as they fall within the ambit of Part 55. 

The last of those is likely to be controversial. Whilst it provides some potential respite for vulnerable groups (e g Gypsy and Traveller Communities), squatters in residential premises appear on the face of it to be covered too.  

In managing land and property, it is to be hoped that sensible solutions are to be found, but if a case is urgent or there is a serious risk to health and safety as a result of the trespass, the court could be invited to invoke its inherent powers of case management to allow such a claim to be heard (see generally CPR 3.1). In such cases, a claim for possession could be issued together with an application (in form N244) for the stay provided by PD 551Z to be lifted. 

What is not covered? 

There are a number of scenarios that are not covered by the Practice Direction.  

On its face, the moratorium does not prevent the issue of a claim for possession. The effect is likely to be that, if issued from 27th March 2020 onwards, the proceedings will be stayed with immediate effect for the remainder of the 90 day period. At the end of that period, they will be served and listed for hearing as before.  

Injunctions are not covered by the Practice Direction. It is at least possible for housing associations and local authorities to obtain an injunction under the Anti-social Behaviour Crime and Policing Act 2014, and to enforce any breach of it by committal proceedings 

There is, of course, power in the 2014 Act for the court to order exclusion from premises as a term of the order (see s. 13). In practice, and on authority (see Moat Housing v Harris and Hartless [2005] EWCA Civ 287) this is a discretion sparingly and rarely exercised; in light of the contents of the Practice Direction it is even less likely during the 90 day period of stay, as the effect of such an order is displacement from the home even on a temporary basis, contrary to all public health advice.  

There are also cases of residential occupancy where no court order is required. Most common are accommodation shared with a resident landlord, service occupancy where premises are occupied as a term of employment (the school caretaker being the classic example) and accommodation occupied pending enquiries into homelessness (under s. 188 Housing Act 1996). This Practice Direction is unlikely to affect such occupiers, but the need for notice and court order for possession depends in every case on the particular circumstances, so obtaining early advice is essential.  

There are, of course, many other scenarios that are not covered above. There are interesting questions about the vires of the Practice Direction; about the practical means of its application or disapplication and about whether the new forms of s. 21 notice actually do what the government intend. There are European Convention arguments on both sides (in particular Article 8 and Article 1 of the First Protocol) which are placed in stark relief by this measure. This note is simply intended to explore some of the more common practicalities.  

I remain of the view that a good deal of potential residual injustice could be prevented by the additional safety net of a minor amendment to s. 89 (1) Housing Act 1980 and I will continue to ride that hobby horse. And yes, I probably need to get out more. It’s just that I’m not allowed. 

In response to the escalating Coronavirus crisis, Tom, other barristers in Chambers and staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.

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