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Residential Possession Proceedings after Coronavirus: Back to normal?

The Coronavirus Act 2020 significantly affected Landlords’ ability to recover possession of properties let on assured shorthold tenancies – the most common form of residential tenancy (‘AST’) . The Act placed restrictions on evictions and introduced different notice periods which have been modified and extended many times. This flux and uncertainty has led to lots of confusion amongst landlords and caused a significant backlog of possession claims.

In September 2021, the Government announced that from the start of October the laws around possession proceedings would largely return to their pre-pandemic states. In this article, we look at what steps are currently required to end an AST and recover possession of the property.

The Possession Process

An AST is brought to an end when a tenant surrenders the tenancy or by a court order for possession.   To obtain a court order the landlord must be able to show the court that a valid notice was served on the tenant.  There are three steps a landlord may have to follow:

  1. Serve a notice of possession on the tenant;
  2. Issue a county court claim for possession;
  3. Enforce court order to recover possession.

Notice of Possession

Landlords must begin the process by serving a notice of their intention to bring proceedings against the tenant for possession (i.e. a ‘notice of possession’). There are two main types of notice used by landlords to recover possession. The section 8 notice is known as a ‘fault notice’, and can be utilised where the tenant has defaulted in some way (i.e. is in rent arrears). The section 21 notice is known as a ‘no-fault notice’ and is used where a landlord has no specific grounds for seeking possession.

The notice periods required for the above have changed several times during the pandemic through various government regulations. The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (SI 2021/994), has amended the regulations so that from 1 October 2021 all notice periods have reverted to their pre-pandemic lengths. Importantly, the Government has retained its power to change the notice periods until 25 March 2021. Landlords must therefore be wary, and keep up to date in case of further alteration and change.

Under a section 8 notice, the notice period varies depending on the grounds relied upon (e.g. for rent arrears this is two weeks, provided that there are at least two months’ worth of arrears). The Government have announced that a new form of notice must be used, which amends Form 3 so that the notes are included in a document called ‘Notes to Form 3’.

Under a section 21 notice, the notice period is set at a standard length of two months. There is also a new form of notice which must be used for a section 21 notice, which includes slight alterations to Form 6A.

Issuing the Claim & Recovering Possession

If the tenant has not vacated the property by the end of the relevant notice period, then the landlord must issue a claim for possession in order to recover possession. There are various documents the landlord must provide to the court along with the Claim Form. Landlords who are seeking repossession as a result of financial difficulties brought on by the pandemic should mark applications as a ‘COVID-19’ case. This will help the court process the claim and assist in their decision making down the line.

The court will set a date for the judge to review the claim. If landlord and tenant cannot reach agreement at the review, a possession hearing will be set. If a section 21 notice was used, and the ‘accelerate procedure’ was followed then the judge can make an order at this stage; without a hearing. Otherwise, the claim will proceed to a hearing and the judge will decide whether an order of possession can be given.

If the tenant does not vacate by the date given in the order, then the landlord should apply to the court for a warrant of possession in order to evict the tenant using bailiffs. There has been a stay on all eviction proceedings during the pandemic, but this ended on 31 May 2021. The courts are suffering a major backlog because of the number of evictions that were prevented during the ban, and bailiffs are not able to operate if someone at the property is self-isolating or has coronavirus symptoms. However, generally speaking, bailiffs can once again be instructed to enter onto the property and evict the tenant, provided a warrant for possession has been received.

Written by Tom Spratley – Trainee Solicitor

If you have an enquiry regarding matters discussed in this article, please contact a member of our litigation department.

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