Possession claims: an update by Sarah Salmon, Chair of SHLA and barrister at Field Court Chambers

On 14 September 2020, the Master of the Rolls’ working party finalised its guidance document so that the legal system, and in particular the courts, can manage housing possession cases once the stay is lifted on 20 September. It also seeks to manage the expectations of both landlords and tenants. A copy of the document is attached. The guidance document, called "OVERALL ARRANGEMENTS FOR POSSESSION PROCEEDINGS IN ENGLAND AND WALES”:

(a) sets out various milestones over the next few weeks and months;
(b) provides an example of a “typical listing day” for possession hearings;
(c) gives an example timeline for a possession claim starting on 21 September; and,
(d) considers (amongst other things):

Practical arrangements for the courts and offering in person hearings to possession claims subject to some exceptions;
the need for the “enhanced information” and other documents with reactivation notices;
Covid-19 case marking;
Listing cases;
Prioritisation of cases;
Legal advice and assistance for defendants;
Review dates;
Mediation; and,
Substantive hearing dates.

On 15 September 2020, the Government also produced reactivation notices and guidance notes for both claimants and defendants. This is not a prescribed form. They can be found here: Reactivation notice for property possession - GOV.UK.

It will be noted that the first box on the form for claimants states:

"You are required to set out the knowledge you have as to the effect of the Coronavirus pandemic on the Defendant and their dependants. Please do so in the box below. This is very important. If you have no knowledge you could consider taking reasonable steps to find out before using this Notice”.

This “requirement” appears to flow from CPR Practice Direction 55C which provides at paragraph 2.3(b): "except in proceedings relating to an appeal, set out what knowledge that party has as to the effect of the Coronavirus pandemic on the Defendant and their dependants” (see also paragraphs 6.1 and 6.2).

SHLA understands that some of its membership has been concerned as to what exactly this might entail. Sarah Salmon and Lee Russell (Partner, Devonshires Solicitors and SHLA Committee member) have been feeding into the working party with the “associations” group and this issue has been raised. The feedback from the Working Party, which we have been asked to pass onto our membership, is that although “knowledge” does not mean enquiries, best practice would be that landlords would try and find out how the pandemic had impacted on a tenant and their household. If enquires are appropriate they should be made and they need not be too intrusive to a tenant and their household. It is expected that the right approach will be taken in the spirit of the reasons behind such a requirement in the practice direction.

☞ Please join our seminar on 17 September 2020 for further information and any other developments.

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