Possession Proceedings: where are we now?

Since March 2020 we have been reporting on the frequently changing rules on obtaining possession of property. It’s been something of a roller coaster for observers of this area of the law but it seems we may now have looped the last loop and are coasting along the flat with the end in sight. Well, maybe. No promises. For now we will set out the position as it currently stands.

Residential Property

The general stay on possession proceedings lifted on 20 September 2020.

Existing claims will however only continue once a “reactivation notice” is filed at court. It is therefore important for landlords to take that action and not assume that the case will automatically restart – it won’t.

When new claims are issued certain new pre-action protocols must now be complied with and notices must be served on defendants setting out known details of the affect that the coronavirus pandemic has had on them and any dependants. The relevant documents must be brought to the hearing. In accelerated possession proceedings (where there normally is no hearing) the notice must be filed with the claim.

These arrangements are set to be in force until 28 March 2021.

Most notice periods given to residential tenants to vacate have been extended to six months. That includes both section 21 notices and section 8 notices, however, in relation to the latter there are certain exceptions, notably where there are rent arrears of at least 6 months or serious anti-social behaviour, in which cases the notice period is 1 month.

The extended notice periods will remain in place for all notices given up to and including 31 March 2021.

Commercial property

The moratorium on forfeiture of commercial leases on grounds of rent arrears has been extended to 31 December 2020. The term “rent” is defined to include most payments that have to be made under the lease, so will extend to insurance and service charge costs.

It does however remain open to landlords to forfeit commercial leases on grounds of breaches other than rent arrears. However, in those circumstances they will need to serve a section 146 notice giving the tenant a reasonable period of time to remedy the breach. The courts may well find that what constitutes a reasonable period in the context of the coronavirus pandemic is longer than usual. Care must therefore be taken in giving that notice. Moreover, if it is necessary to bring the claim in court rather than effect peacable re-entry (for instance if part of the property is residential) then landlords will find themselves mired in the backlog of possession cases in the court system, so can expect considerable delays.

Parties to commercial leases will obviously be keen to know whether any restrictions on forfeiture will continue beyond 31 December 2020. It may be that a tiered system is introduced under which leases can be forfeited if the rent arrears exceed certain levels. We will provide further updates as soon as we know.

Here to Help

If you need advice or more information on possession proceedings or any other property dispute issue, please contact John Wagstaffe, Partner and Head of Property Disputes.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.