2020-09-24
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Residential Tenancies – the latest (as at 18 September 2020)

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Posted by Mary Rouse on 18 September 2020

Anyone involved in bringing possession proceedings at the moment must be reeling from the number of changes and the amount of new (albeit temporary) legislation that is being pushed through. You will find yourselves juggling new law, new forms, and new procedures at Court. We’ll try and bring you up to date.

New Form 5B

This is the form to use for accelerated possession claims.

The new form can be found at here

You will see that is asks many more questions than its predecessor. For social landlords, you need to submit with the form evidence that you have complied with Part 3 of the Pre-Action Protocol for Social Landlords.

Bringing possession proceedings after 20 September 2020

These are the main points to be aware of:

  • There has been much talk of a reactivation notice for proceedings that had already been issued but were stayed by the Coronavirus legislation. Although there is no prescribed form, i.e. no specific wording, a template notice has now been produced to help landlords. It can be found here
  • Cases where the Claimant already has a possession order will not require a reactivation notice. 14 days’ notice of any eviction (county or high court) will be given to Defendants.
  • When a claim is issued or reactivated, firstly, a Review Hearing will be listed and the rules require an electronic bundle of documents to be provided for the court and a paper bundle for the tenant (unless they are happy to accept an electronic bundle) – bundle to be provided not less than 14 days before the hearing.
  • On the day of the Review Hearing, the Claimant does not attend court – the Defendant may attend with a view to obtaining advice from the duty advisor. The parties are encouraged to talk to one another (by phone) and, if agreement is reached, to file a draft consent order by email. The Judges will hear the Reviews at the end of the day on which they are listed, in the hope that the parties will have reached agreement.
  • The Review Hearing itself is to take no more than 5 minutes. The parties are not expected to be in attendance. If the parties haven’t reached agreement, the Judge will review the papers and either dismiss the claim if there are errors, make directions or list for a Substantive Hearing.
  • Any new claim must provide the information about the effect of Covid-19 on the tenant, as far as it is known, as mentioned in previous briefings.
  • The Substantive Hearings will be in person, but legal representatives may appear by video link if their client is in course, and vice versa, i.e. not everyone needs to attend in person unless specifically ordered to do so.
  • There is to be a designated possession email address (not yet provided) and staff at court will be specifically allocated to deal with possession cases.
  • Courts will try to allocate sufficient time for the Substantive Hearings. Priority listing will be given to cases where there are very high rent arrears (more than six months), ASB, domestic violence, squatters, unlawful-subletting, abandonment, death of a tenant and possession of temporary accommodation.
  • Additional district judges and deputies are being drafted in and there will also be new hearing centres.

Further information can be found in the Overall Arrangements for Possession Proceedings in England and Wales, produced by the Master of the Rolls. You can find the document here

All of this points to a much longer process before a possession order is made, unless agreement can be reached. The arrangements say that the Substantive Hearing “should” be 28 days after the Review Hearing which suggests this may not always be the case.

Where agreement can be reached, you should be ready to provide a draft order, or an email setting out the terms of agreement so that, hopefully, the judge will be prepared to grant an order in the terms agreed, without needing to refer the case for a Substantive Hearing.

If we can help with any aspect, or you would like some training to take your teams through the new procedures, please do contact Mary Rouse.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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