The challenge of post-pandemic possession proceedings

By Sharfaa Kerkache, Trainee Solicitor at Woodstock Legal Services

The story so far…

At the beginning of the COVID-19 outbreak, on 27 March 2020 Practice Direction 51Z was published imposing an automatic stay of 90 days on all possession claims and evictions. This meant that no housing possession claim could progress through the courts to evict during this period unless a landlord could prove exceptional circumstances in which case, the stay could be lifted. The court stay was extended and expired in September 2020.

Notice periods were varied numerous times during the pandemic through the introduction of The Coronavirus Act 2020. The provisions in the Act increased the notice periods landlords were required to provide to tenants when seeking possession between 26 March 2020 and 30 September 2021. Section 21 Notices periods went from 2 months notices to 6 months to 4 months.

Legislation was also introduced preventing bailiffs from evicting tenants. At one-point claims could progress through the courts but would stop at bailiff stage unless an exemption applied. This was in place until May 2021.

Post pandemic – the challenges faced by landlords

Since 1 October 2021 Notice periods in England have gone back to their pre pandemic notice lengths. This means the minimum period of notice which must be given under section 21 is two months and, where a section 8 notice is relied upon, the minimum notice period will depend on the ground(s) on which possession is sought.

The courts are back open and processing possession claims but the courts are still clearly trying to recover from the impact of the pandemic and the substantial backlog. The court system was already far from sufficient for landlords and with the added pressures of the backlog, landlords have been waiting many months to get their case before a Judge. It is very common to be number 94 in a call queue trying to get through to the court staff and for emails to have at least a 21-day response time especially for London courts.

There were sadly many genuine cases during the pandemic where tenants had fallen into arrears and landlords were urged to keep the lines of communication open with their tenant and seek settlement where possible. However, some tenants were using the flawed system to their advantage to remain in the property as long as possible, not paying any rent.

In one such case a bailiff attended a property 4 times to evict a tenant in substantial rent arrears but each time the tenant advised the bailiff he had COVID. No evidence was ever provided of a positive test.  Bailiffs have been asked not to carry out an eviction if they are made aware that anyone living in the property has COVID-19 symptoms or is self-isolating. Equally long-awaited court hearings have been rescheduled due to tenants advising they are self-isolating or have symptoms. There has been significant disruption to claims as we all navigate the new normal of living with COVID.

Are there any alternatives to court proceedings?

The court closures encouraged parties to communicate freely and consider their options where possession proceedings were not available, or they might not have been the best option for landlords.

Even now the courts are back open, no new claim for possession should be started without careful efforts to reach a compromise between the parties. Court proceedings should always be a last resort.

Landlords should seek legal advice and explore alternative settlement options, such as:

Surrender
Both parties could agree to bring the tenancy to an early conclusion. For example, if the tenant’s circumstances change and they are realistic about the prospects of being able to afford the rent. A landlord may decide to agree an early termination rather going through the stress of the court process and trying to recover money that just isn’t there.

Rent reductions and settlement agreements
Landlords may consider a temporary rent reduction. For example, during the pandemic many employees were furloughed on 80% of their income. Some landlords decided to offer a small reduction for a certain amount of time. Other landlords offered a ‘rent holiday’ similar to the mortgage holiday but this was on the basis that this rent would still be payable at an agreed later date. Unfortunately, the media caused a lot of confusion, and many tenants were of the view that a mortgage holiday meant that landlords had 3 months mortgage free without understanding that this money was recovered through increased monthly payments or mortgage terms.

These options are still available to landlords, and we see many tenants entering into payment plans during challenging times and then going on to paying the rent in full and on time going forward.

It is always advised to seek assistance from a solicitor when drafting any settlement agreements to ensure a landlord is sufficiently protected. Where there is rent protection in place it is also recommended that the letting agent/landlord speak to the insurer before accepting any rent reduction which may impact on their ability to make a claim.