23 August 2020 – eviction day?

Posted: 18/08/2020

On 23 August 2020, the new Practice Direction 55C supplementing the Civil Procedure Rules comes into force. Although there has been some reporting in the national press about 23 August 2020 becoming known as ‘eviction day’, that is not, strictly speaking, true. Unless a case falls into one of the existing exceptions imposed by the court rules, there will be no evictions at all on 23 August 2020 and, quite possibly, for some time after that.

Landlords will need to see whether they fall into one of the below three categories for the purposes of the new Practice Direction:

1. Claims for possession brought prior to 3 August 2020 where no order for possession has been granted but that have been stayed by Practice Direction 51Z and Civil Procedure Rule 55.29 (the first category).
2. Claims for possession brought prior to 3 August 2020 where an order for possession has been granted but the enforcement of that order has been stayed by Practice Direction 51Z and Civil Procedure Rule 55.29 (the second category).
3. Claims for possession brought on or after 3 August 2020 (the third category).

The first category

Landlords who fall within the first category will have the most work to do. The new Practice Direction imposes the following obligations:

• landlords will have to file with the court and serve on the tenant(s) a ‘reactivation notice’ confirming:
  • that they wish the case to be listed, relisted, heard or referred to a judge;
  • that sets out what knowledge they have as to the effect of the coronavirus pandemic on the tenant(s) and their dependants;
  • that if the claim is based on arrears of rent, provide an updated rent account for the previous two years;
  • where directions were in place before 23 August 2020, a landlord must also serve:
    • a copy of the last directions order;
    • new dates for compliance with the directions;
    • either:
      • a draft order setting out additional or alternative directions (including proposing a new hearing date) that are required; or
      • a statement that no new directions are required and that an existing hearing date can be met; and
    • a statement in writing confirming whether the case is suitable for hearing by video or audio link.

Tenants will have 14 days from receipt of the reactivation notice to file and serve a response if they disagree with the landlord’s submission on directions.

Furthermore, landlords in this category who also had trial dates set prior to 27 March 2020 (the date all possession claims were stayed) will have to file the reactivation notice not less than 42 days prior to the hearing date otherwise they will be vacated. 

If landlords do not file and serve reactivation notices by 16.00 on 29 January 2021, their claim will be automatically stayed. 

The second category

Landlords in this category have the least information as the Practice Directions do not cover what the court will do to re-list warrants for possession that were stayed. 

As the new Practice Direction is silent on this, it should mean that the court will re-list these without requiring landlords to have to contact the court to do so. However, we are sceptical about whether the courts will take this approach and our advice is that landlords who fall in this category either:

• write to the county court bailiffs and ask them to re-list the warrant for possession as soon as possible; or
• if possession is needed quickly, make an application to transfer the proceedings to the High Court for enforcement by the High Court Sheriffs.

The third category

Landlords who fall in this category must bring to the hearing for possession two copies of a notice setting out what knowledge they have as to the effect of the coronavirus pandemic on the tenant(s) and their dependants. A copy of this notice must also be served on the tenant(s) at least 14 days prior to the hearing for possession.

Registered providers of social housing have the further obligation of confirming how they have complied with the Pre-Action Protocol for Possession Claims.

Summary

These new rules will apply from 23 August 2020 until 28 March 2021. It is hoped that landlords and tenants have engaged during this difficult time to try to agree some form of arrangement over unpaid rent arrears. But there will not be a flood of evictions on 23 August 2020 because of all of the steps landlords will have to take pursuant to the new Practice Direction. 

Even before the pandemic, the courts were generally quite slow at processing possession claims. The stay to all possession claims will mainly mean that there is now a large backlog of claims that the courts will be unable to deal with timeously unless one of the proposed ‘Nightingale courts’ intervene (to date there has been no confirmation of this). 

Update: following publication of this article, the Government has extended the ban on landlords evicting tenants in England until 20 September 2020.

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