Since the start of the Covid-19 pandemic, there have been a number of measures limiting the ability of landlords to recover possession of their properties. Whilst the stay on possession proceedings has been lifted since 20 September 2020, significant restrictions have been placed on the ability of a landlord to enforce possession orders and evict tenants.

Regulations have been in place which ‘ban’ evictions save for certain specific cases. Those rules were due to expire in both England and Wales on Monday, 11 January 2021 but the current state of the pandemic has seen new, separate, regulations in England and Wales extending the ‘ban’. We set out the latest position below.

How long will the new ban on evictions last?

In England, the regulations came into effect on Monday, 11 January and will last until 21 February 2021. You can find the full text of the English regulations here.

In Wales, the regulations also came into effect on Monday, 11 January but expire on 31 March 2021. However, they contain a requirement on the Welsh Ministers to review their continued operation before 28 January and at least once every 21 days thereafter. You can find the full text of the Welsh regulations here.

What is the position now?

The general position remains that neither county court bailiffs nor High Court Enforcement agents can attend at a property to serve a notice or carry out an eviction. There are, again, exceptions where evictions are allowed to proceed.

What are the exceptions?

In relation to secure and assured tenants, there are exceptions in both England and Wales for cases where the possession order was made either partly or entirely on any mandatory or discretionary ground related to:

• anti-social behaviour;
• domestic violence/abuse;
• tenancy fraud;
• death of the tenant and the tenancy devolving under the tenant’s will or intestacy.

Evictions can also proceed against trespassers where the proceedings were brought under CPR 55.6.

What about cases involving rent arrears?

In Wales, no exceptions exist for cases where enforcement of the order is sought on the basis of rent arrears. Accordingly, no tenant of a property in Wales can be evicted on account of rent arrears alone.

In England, until 10 January 2021, an exception existed if the arrears were at least nine months on the date that the order for possession was made. Importantly, however, any arrears which accrued on or after 23 March 2020 were to be completely disregarded from the calculation of the arrears figure.

From 11 January 2021, a significant change has been made to cases involving arrears. Evictions can now take place where arrears equate to six months - regardless of when they have accrued. It no longer matters what the arrears were when the possession order was made: the only requirement is that six months or more is outstanding at the date the warrant is applied for.  

This substantially changes the previous position and puts a significantly greater number of tenants at risk of eviction. It also means that tenants whose arrears may have accrued solely as a result of circumstances related to the pandemic no longer enjoy protection from eviction: this marks a reversal from the government’s previous position on this issue.

However, District Judges who receive applications to stay or suspend the execution of a warrant are likely to be more sympathetic in a cases made on discretionary grounds if the arrears have genuinely arisen as a result of the pandemic and where the tenant has cooperated with the landlord and other agencies.

How do you apply for a warrant where an exception applies?

Many of our clients have experienced considerable inconsistencies in the approach of the different county courts to this issue. 

Under the rules, applications for warrants are still made in the same way by completing Form N325. However, in cases where the order does not clearly specify the grounds for possession, guidance has been issued which states that it is necessary to complete a Form N244 application notice which requests the judge to certify that at least one of the grounds upon which the order was made is within the scope of the exceptions.

The courts have indicated that there will be no fee payable for this application.

Clients have reported encountering difficulties arranging bailiff appointments even when the same is allowed by the regulations and has been approved by the judges; please contact us if you experience such difficulties.

How can Capsticks help?

We remain well placed to continue to help you deal with cases swiftly and are in regular contact with your local courts to keep a finger on the pulse of any differing practices they are adopting.

If you have any queries around what is discussed in this article, or the steps that you can take in any given case, please do not hesitate to speak to Simon Strelitz, or any of your contacts at Capsticks, to find out more about how we can help.