Update to Possession Claims during Coronavirus

On the 26 March 2019, the Master of the Rolls and the Lord Chancellor introduced a new Practice Direction 51Z(PD)to complement the emergency provisions contained in the Coronavirus Act 2020.The Practice direction applied to all proceedings under CPR 55 and stayed all possession claims for a period of 90 days during the pandemic. Following the introduction of this Practice Direction, the Property Bar Association and the Property Litigation Association wrote to the Master of Rolls requesting clarification on the categories of possession claims the Practice Direction applied to and explaining why a complete ban on certain categories in possession proceedings was not appropriate.

On the 20 April 2020, an amendment to the Practice Direction 51Z(PD) came into force. This amendment is effective from the 18 April 2020 and provides clarification on the types of possession matters under CPR 55 to which the 90-day stay does not apply. This includes claims against a trespasser to which CPR 55.6 applies. The provisions under CPR 55.6 relate to service of claims against trespassers where the possession claim has been issued against “persons unknown”. This means that where you have a claim against a trespasser and the identity of the trespasser is unknown then you can proceed with making a possession claim at the Court. The amendment to the rules is very limited and does not apply in cases where a licensee has stayed past the expiry of his licence and/or the identity of the trespasser is known.

Furthermore, the stay does not apply to interim possession order applications under Part III of CPR 55. An interim possession order application can be sought in limited circumstances where the requirements under CPR 55.21 have been satisfied namely:

“(a) the only claim made is a possession claim against trespassers for the recovery of premises;

(b) the claimant –

(i) has an immediate right to possession of the premises; and

(ii) has had such a right throughout the period of alleged unlawful occupation; and

(c) the claim is made within 28 days of the date on which the claimant first knew, or ought reasonably to have known, that the defendant (or any of the defendants), was in occupation.

(2) An application for an IPO may not be made against a defendant who entered or remained on the premises with the consent of a person who, at the time consent was given, had an immediate right to possession of the premises.”

This is an important remedy available to landlords as breach of an interim possession order is a criminal offence.

Additionally, the amendment to the Practice Direction also confirmed that where parties in possession proceeding have agreed directions then they can make an application for case management directions. It appears that this is intended to ensure that cases can progress where possible during the stay to avoid a backlog of cases when the stay is lifted.

Finally, the amendment confirms that parties are not precluded from issuing possession claims to which the stay applies. This amendment is particularly important in relation to section 21 possession claims against assured shorthold tenants as landlords no longer need to be concerned about the “ use it or lose it provisions” under s21(4D) of the Housing Act 1988 which requires proceedings in section 21 claims to be issued within 6 months after a section 21 Notice is served. This means that landlords can still proceed to issue claims at Court so their claims are not time-barred but the stay is likely to apply to the claim once issued.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*