Property litigation weekly update - 3 September 2020
After a short summer break, our property litigation bulletin is back with a snapshot of the latest news. This week we report on last minute updates to notices seeking possession, together with a case law update about setting aside possession orders and insight from our colleagues around the firm.
Residential possession proceedings and notice requirements
Just as residential landlords were gearing themselves up for being able to take possession action against their tenants as of 24 August 2020, on 21 August 2020 a four week extension was announced, extending the stay until 20 September 2020.
At the same time it was announced that landlords would have to give tenants six months' notice of their intention to take possession proceedings, the aim of this being to support tenants over the winter months. So, on the afternoon of 28 August 2020, the government published The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020. These regulations came into force the following day.
The general position is that landlords must give six months' notice before starting possession proceedings as of 29 August 2020. However, there are some exceptions to this which are summarised below:
1 Assured tenancies
1.1 In relation to Grounds 8, 10 or 11 – where not less than six months' arrears are outstanding at the time of service of the notice, four weeks' notice can be given.
1.2 Ground 7 – three months' notice.
1.3 Ground 7B – three months' notice.
1.4 Ground 14 – no notice is required and proceedings can be issued immediately.
1.5 Ground 14A – two weeks' notice.
1.6 Ground 14ZA – two weeks' notice.
1.7 Ground 17 – two weeks' notice.
1.8 Ground 7A – 28 days' notice for periodic tenancies and one month's notice for fixed term tenancies.
2 Secure tenancies
2.1 Ground 1 – four weeks' notice if at least six months' rent arrears are outstanding and no other ground is relied on (save for a few exceptions).
2.2 Ground 2 – no notice is required and proceedings can be issued immediately
2.3 Ground 27A – four weeks' notice.
2.4 Ground 2A – four weeks' notice.
2.5 Ground 5 – four weeks' notice.
Insofar as assured shorthold tenancies (under section 21 of the Housing Act 1988) are concerned, six months' notice is required. However, as this would mean that landlords would lose the right to issue proceedings (which usually have to be issued within six months of the date of service of the notice), the period has been extended to 10 months from the date of service, thus still giving four months to issue such proceedings.
The Regulations are not straightforward and will no doubt give rise to questions for residential landlords.
Case Law Update: Sangha v Amicus Finance Plc (2020) EWHC 1074 (Ch)
This case concerned an application brought by Mr Sangha, following the Court's refusal to set aside a possession order.
By way of background, Amicus brought possession proceedings against Mr Sangha and the hearing was listed on 27 January 2017. Mr Sangha was in attendance and represented himself. A possession order was awarded by the Court.
On 1 December 2017, Mr Sangha made an application to set aside the possession order under CPR 3.1(7), which states that a Court has the power to vary or revoke an order. The basis of Mr Sangha's application was that, on 30 November 2017, he had a conference with counsel during which he became aware that he had a potential defence to the possession proceedings.
The application to set aside the possession order was dismissed on 6 April 2018. Mr Sangha appealed against this decision, which was also dismissed for the following reasons:
- A possession order was a final order and need not have been executed by Amicus;
- Only in exceptional circumstances can a possession order be set aside (in this case, the circumstances were not exceptional);
- Regardless of the fact that Mr Sangha was unrepresented, he did in fact attend the hearing.
This case reaffirms the principle that only in exceptional circumstances can a possession order be set aside and obtaining legal advice at a late stage is not a basis to set aside a possession order. An exceptional circumstance may, for example, be where a tenant was not in attendance at Court due to unforeseen or uncontrollable circumstances.
Insight from around the firm
- Telecoms - on 21 August 2020, judgment in the anticipated case of Vodafone Limited v Hanover Capital Limited was handed down. The case dealt with lease term length and how rents under electronic communications site lease renewals are to be valued under the Landlord and Tenant Act 1954 - read our article here.
- The right to manage regime, set down in the Commonhold and Leasehold Reform Act 2002, has been fraught with difficulties for leaseholders exercising their right. The recent report by the Law Commission sets out proposals to reduce costs, widen availability and make the process less complicated, mirroring the enfranchisement proposals - read more here.
- Eat Out to Help Out: more than 64 million "Rishi's Dishes" were claimed in the first four weeks of the government funded scheme. However, now the deal has come to an end, some businesses are continuing to offer customers a special deal into September as a way of saying thank you for their support at this difficult time.
- Rhyl lifeboat crew rescued a dog after it chased seagulls into the sea off Rhyl. The pet was about half a mile away from the shore by the time the lifeboat crew reached it. The dog followed the seagulls into the sea, and kept going following the birds further out to sea. The crew were able to reunite it with its thankful owner on the beach.
- An 11-year-old boy has been hailed a hero after jumping into the sea to save a toddler. The boy sprang into action when he saw the toddler in the harbour near his home in North Yorkshire. The toddler was spotted hanging onto a fishing net about 33ft away from the shore. The boy sprang into action, before others had the chance to react, and swam to the shore with the boy to successfully reunite him with his loved ones.