Residential Possession Claims Post-Covid: What you need to know

It is looking increasingly likely that the stay on the issue and progression of proceedings to recover possession of residential properties let under Assured Shorthold Tenancies (“possession proceedings” in short) will finally be lifted on the evening of Sunday 20 September 2020. From Monday 21 September 2020, new possession proceedings can be issued and existing claims which have been stayed can be re-activated.

Predictably however, the landscape post-Covid is very different and there are a number of new issues for landlords to be aware of and a number of new requirements which must be complied with if possession is to be successfully obtained.

These include the following:-

  • For all existing proceedings which were issued prior to 3 August 2020 and which are currently stayed, a “reactivation notice” must be filed at court by no later than 29 January 2021. No existing claims will be progressed or listed without such a notice being served;
  • New cases can now be issued but these will not be listed for hearing upon issue, as was previously the case. The former, prescribed period of a maximum of 8 weeks between issue date and hearing date will no longer apply;
  • A greater emphasis is being placed on the parties to work cooperatively to try to settle cases without the need for litigation. Claimants should expect to be required to demonstrate evidence of attempts having been made to settle claims prior to seeking possession orders;
  • In all cases, both new and re-activated, the Claimant will be required to file evidence setting out its knowledge of the effect which the Covid-19 Emergency has had on the Defendant and their dependents. From this, we can expect a wide exercise of judicial discretion when determining whether a possession order is appropriate, bearing all of the circumstances in mind;
  • Courts are likely to be extremely busy and so remote hearings will be offerred where possible;
  • So-called “Covid Marking” will be available to both Claimants and Defendants. The parties will be able to mark a case to draw judicial attention to the fact that they have suffered severe hardship relating to the particular property as a result of Covid.

In circumstances where possession proceedings have not yet been commenced and notices have not yet been served, potential claimants should also be aware that the periods of notice required to be given under both Section 21 and Section 8 notices have been extended by statute. The minimum notice period now required to be given under a Section 21 notice is six months. In most cases, the minimum notice period required to be given under a Section 8 notice is also six months (there are some limited exceptions to this rule, please feel free to contact us for more information on this).

Overall, the landscape has shifted considerably as a result of Covid. There are now more tripwires and pitfalls than ever for landlords to be wary of when issuing and conducting possession proceedings. As such, it is arguably more important than ever to be professionally advised when dealing with such proceedings.

If you have any further queries on the new regime or require advice on specific cases, please do not hesitate to contact our Property Litigation department, details for which are as follows:-

Alan Dixon - Partner- 0207 549 7895-

Michael Adamson- Senior Associate- 0207 549 7872-

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.