Property litigation weekly update – 8 October 2020
This week we report on guidance issued for residential possession proceedings and the requirement for a reactivation notice to pursue existing possession claims. This is followed by insight articles and podcasts from our colleagues around the firm and positive news.
Guidance on Possession Claims
In the lead up to the restarting of possession proceedings on 21 September 2020, various materials were published. Firstly, the Master of the Rolls published a statement: "Overall Arrangements for Possession Proceedings In England and Wales".
The working party that had been involved in ensuring the courts would be ready for the resumption of possession proceedings after the stay was lifted consisted of a wide cross section of those involved in possession proceedings including Judges, court staff, Government officials, legal representatives, representatives from the advice sector as well as those representing landlords and tenants, mortgage lenders and borrowers. Two documents were published: the first was a brief one page document entitled "Possession Proceedings Listing Priorities in the County Court". This states the decision as to whether or not a case is a priority is a matter for the Judge. Not surprisingly, those cases considered to be a priority involve allegations of anti-social behaviour, high rent arrears, squatters/illegal occupiers and domestic violence, to name but a few. Priority will also generally be given to cases that were issued before the stay commenced in March 2020.
The more detailed document "Overall Arrangements for Possession Proceedings in England and Wales" runs to 13 pages. In summary:
- when cases are being restarted or where any kind of possession order is being made, careful efforts should be made to reach a compromise;
- where a claim was brought before 3 August 2020, a reactivation notice must be served;
- reference is made to guidelines issued by the Ministry of Housing, Communities and Local Government (MHCLG) on pre and post issue best practice;
- the document sets out how courts will deal with hearings from a practical point of view;
- there will be Covid-19 "case marking" and an explanation is given as to how this will be effected and how cases will be listed, including the prioritisation of cases;
- there will be a revised duty scheme for free advice for Defendants;
the document sets out how the Review Date will operate as well as the Substantive Hearing;
- the document also sets out how accelerated possessions claims will operate as well as evictions once an order for possession has been made.
Guidance has also been published by MHCLG entitled "Understanding the Possession Action Process: A Guide for Private Landlords in England and Wales".
Finally, the National Residential Landlord's Association has also published "Pre-Action Plan: Managing Arrears and Avoiding Possession Claims".
Please contact a member of the Property Litigation team if you would like to discuss this further.
Reactivation Notices – not to be missed in existing residential possession proceedings
As the stay on possession proceedings comes to an end, we look at the new procedures that apply when dealing with possession claims further to reports in previous bulletins, 3 September & 13 August. Notably, a written reactivation notice must be filed and served in order for any claims brought on or before 19 September 2020 to be listed, relisted, heard or referred to a judge.
The claimant must provide knowledge of the impact that the coronavirus pandemic has had on the defendant and their dependants. In addition, the claimant must include a statement of account for the previous 2 years and must specify whether the case qualifies for priority consideration.
Failure to file and serve a reactivation notice by 4pm on 29 January 2021 will result in an automatic stay of proceedings.
A template reactivation notice can be found here with some useful guidance notes.
Insight from our colleagues around the firm
- Trowers & Knight Frank podcast: the changing nature of offices, listen to the podcast here.
- Our Manchester – is community now more important than ever?
- Trowers comments: 'Powerful and boisterous': the Building Safety Regulator
- As Black History Month begins, Managing Associate and chair of the Race, Ethnicity and Heritage Network, Claire Ezekwe talks to partner Ayda Habboush about her Nigerian heritage, the Black Lives Matter movement and what it means to be Black and British in 2020 listen to their podcast here.
- A couple's road trip through the Scottish Highlands was saved by the kindness of strangers after their campervan was crushed by a fallen tree. Almost immediately someone helped find them free accommodation and their plight was shared on social media following which a campervan company owner offered them her own van as a replacement after companies in Inverness had none for hire.
- Runners in an array of colourful costumes set off in parks and on roads across the UK on 4 October to mark the 40th London Marathon. All non-elite athletes took part remotely due to COVID-19, picking their own 26.2-mile courses. An estimated 45,000 participants logged their progress on an app to make their times official and secure medals, many facing heavy rain which affected parts of the UK on race day.
- Since January 2020, sweeping wildfires have scorched nearly 20% of the Brazilian Pantanal, part of the world's largest tropical wetland. Stretching across Brazil, Bolivia and Paraguay, the 70,000-square-mile Pantanal has the highest density of mammal species on Earth. To save its unique biodiversity, teams of volunteers have fanned out throughout the region, rescuing hundreds of animals injured in the wildfires and leaving others food and water.