Clarity on the current stay on evictions and taking control of goods

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17 November, 2020

You may have had sight of recent letters from the Lord Chancellor to the High Court Enforcement Officers Association requesting that evictions and enforcement by taking control of goods are put on hold. Firstly, whilst we were in the tiered lockdown system, he requested they don't take place in Tier 2 and 3 locations. Then when we entered national lockdown on 5 November 2020, he requested all evictions be put on hold save for some exceptions including claims against trespassers, ASB possessions and 'unoccupied after tenant death' cases. He also intended to introduce an exemption for cases with extreme pre-Covid rent arrears - and we have been waiting for more details. It was also not clear on what legal basis the Lord Chancellor could 'request' by letter a suspension on evictions.

The Government has now reacted and today, The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 come into force in England (we love a snappy title!).

Evictions

The Regulations prevent residential evictions (save for some exceptions) until 11 January 2021. The exceptions are where the court is satisfied that the warrant relates to an order for possession made:

  • Against trespassers under CPR 55;
  • Wholly or partly under section 84A of the Housing Act 1985 (absolute ground for ASB);
  • Wholly or partly on Ground 2, 2A or 5 in Schedule 2 to the Housing Act 1985 (secure tenancies);
  • Wholly or partly on Ground 7A, 14, 14A or 17 in Schedule 2 to the Housing Act 1988 (assured tenancies); or
  • Wholly or partly under case 2 of Schedule 15 to the Rent Act 1977 (protected tenancies).

There are also exceptions if the court is satisfied that:

  • The case involves substantial rent arrears; and
  • The order for possession is made wholly or partly;
    • i. on Ground 1 in Schedule 2 to the Housing Act 1985;
    • ii. on Ground 8, 10 or 11 in Schedule 2 to the Housing Act 1988; or
    • iii. under case 1 of Schedule 5 to the Rent Act 1977.

Substantial rent arrears are arrears which, at the date of the possession order, are equivalent to at least 9 months' rent. Any unpaid rent accrued after 23 March 2020 must be disregarded.

Lastly, the stay on evictions does not apply where the court is satisfied that the order for possession was made wholly or partly on Ground 7 of Schedule 2 to the Housing Act 1988. However, the person attending the dwelling house must take reasonable steps to satisfy themselves that it is unoccupied before delivering a notice of eviction, executing a writ or warrant of possession, or executing a writ or warrant of restitution.

Taking control of goods

The ban on taking control of goods expires upon expiry of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 - which is 28 days from 5 November 2020.

Comment

The Regulations provide much needed clarity, particularly on rent arrears cases. It remains unclear however how bailiffs will determine whether arrears accrued pre or post Covid. The Regulations refer to the court being satisfied of matters - perhaps that requires an application to the court for eviction rather than a simple request for warrant.

If you require any assistance with possession claims or enforcement of money claims, please contact the Housing Litigation department on 0333 207 1130.

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