You may not be able to get possession immediately, but you can get the ball rolling.

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20 May, 2020

You will likely be aware that there has been legislation around the area of possession during the Covid 19 crisis. This article explains the issues around the catchily titled PD51Z, and the changes to the Housing Act. Under normal circumstances, to obtain possession of property from a residential tenant, a landlord will invariably require a court order. In the vast majority of cases residential possession claims are dealt with under CPR PD 55.

On 27 March 2020, CPR Practice Direction 51Z (PD 51Z) came into force. PD51Z provides that for a period of 90 days commencing on 27 March 2020, most proceedings for possession brought under CPR 55 and most proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed.

The Practice Direction was intended to help the court to function given the impact of the Covid-19 pandemic and ensure that the administration of justice, including enforcement of orders, does not endanger public health. It also recognised the issues of limited court resources during the COVID-19 pandemic.

PD51Z is very broad and applies to all proceedings brought under CPR Part 55. The only express exception to the stay was for claims for injunctions and the stay appeared to apply to possession proceedings against trespassers. This caused concern for property owners who were worried that significant damage could occur during the 90-day stay period.

As you would expect this has been quickly tested by the legal profession and this week the Court of Appeal has given judgment in Arkin v Marshall.

  • The case concerned CPR Practice Direction 51Z, which effectively prevents (with very limited exceptions) people, including landlords, bringing or progressing possession proceedings until after 25 June 2020 (a date which may be extended further) due to the Coronavirus.
  • The Court found that courts do in principle have power to lift the stay imposed by PD51Z but it said this is only in the most exceptional circumstances.

In addition, on 20 April 2020, following requests for clarification, an amendment was made to PD51Z to clarify the extent of the intended stay. The new rules are backdated to 16 April and will be in force until 30 October 2020.

  • It gave clarity that the stay imposed on possession proceedings does not apply to claims against trespassers (i.e. persons unknown who have, and never had, a right to occupation).
  • The amendment also clarifies that the stay does not apply to applications for and the making of interim possession orders .The amendment also makes it clear that parties to possession proceedings can still make applications for case management directions where they are agreed by the parties so that progress can be made swiftly once the stay is lifted.

A recent case at the County Court in Newcastle shows that the courts are willing under exceptional circumstances to make an order for possession. In this case the Defendant had not occupied the property for six months and had agreed to the terms of a possession order. It does, however, significantly demonstrates that the Court may and will exercise its powers to shorten or dis-apply the stay in PD51Z.

  • The Judge accepted the Claimant's submissions and took a novel approach to make a finding that the stay imposed on these proceedings by PD51Z is, in exercise of the Court's powers under CPR3.1(2)(a), shortened to 0 days and/or is an exercise of the Court's powers under CPR3.1(2)(m), dis-applied. As a result, an outright possession order was made.

This will be welcome news to landowners and Landlords although they should still continue, as far as they are practically able within the other restrictions imposed by the Coronavirus Act 2020, to put in place measures to physically protect property from access by trespassers.

In an extremely fast-moving situation, and while it is difficult to say what will happen when this initial 90 days ends, we can be confident that there will be huge backlog of cases once it is lifted. There may also be a glut of new claims due to the economic impact of Covid19.

To avoid being at the end of what must surely be a lengthy queue when restrictions are finally lifted, we can and should still issue claims even if these will be stayed for the time being. It may also be the individual circumstances allow for an immediate order and these proceedings should not be delayed.

For more information contact Laura Hallett Lea in our Business Dispute Resolution department via email or phone on 0333 207 1141. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Business Dispute Resolution department here

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