Taking possession proceedings in light of coronavirus – an update

In an update to our article of 25 March 2020 in relation to the amendment to notice periods on residential tenancies, on Friday the Master of the Rolls and Lord Chief Justice issued a practice direction (PD) in relation to possession proceedings (PD51Z).

The announcement can be found here.

The PD itself is available here.

The PD became effective on Friday 27 March 2020. The direction is simple: all proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession (i.e. county court or high court bailiff evictions) are stayed for a period of 90 days from 27 March 2020. Injunctions are not included in the stay. It means that any live claims will be paused and no new claims can be made until the stay is lifted.

Comment:

This is a measure designed to protect public safety and for that it should be applauded. The "lockdown" rules are reportedly already having a positive effect in slowing the spread of coronavirus, and moving house would not be conducive to keeping to social distancing rules. The suspension will also assist individuals who have been – or will be in the coming months – financially adversely affected by Covid- 19; those who can no longer work or earn as they had expected and who would normally face possession proceedings on the grounds of rent arrears.

Nevertheless, the PD has the potential to have certain adverse side effects. Part 55 of the Civil Procedure Rules defines a possession claim as "a claim for the recovery of possession of land (including buildings or parts of buildings)". The PD is not restricted to the private residential rental sector and may have an adverse effect on other possession proceedings where the grounds for possession are not coronavirus-related. By way of example, forfeiture proceedings against long leaseholders or second-home renters who are breaching material terms of their lease are also suspended.

Clearly, emergency measures drawn up in such a short space of time will inevitably not be ideal for everyone. As matters presently stand the PD will cease to have effect after October 2020. There will no doubt be those who abuse the system and use the rules as an excuse to breach the tenancy agreement, but on a survival level, it is better to protect everyone, even if there are some (hopefully a very small minority) who seek to take advantage. Furthermore, the PD simply suspends the right to obtain possession. It does not, however, otherwise interfere with rules of contract, and tenants who do decide not to comply with the tenancy will remain liable for rent and other obligations under the tenancy even if the threat of possession proceedings is lifted for three months. At present the rules have not changed in respect of other remedies and a landlord could still take court proceedings to enforce rights under the tenancy even if they cannot at present obtain possession.   

Further, as a safety net, injunctions are exempt from the stay and in fact may be increasingly used. In fact, Britain's first "coronavirus injunction" was imposed on Friday 27 March 2020 against a tenant who continued to party in breach of the lockdown.