There has been some confusion and many questions around serving notices and taking possession proceedings during the COVID-19 pandemic. We hope to clarify the position in England and Wales for social housing providers, below.

Can we still issue possession proceedings?

Technically, yes – there is no legal obstacle to issuing possession proceedings contained within either the Coronavirus Act 2020 (‘the Act’) or the Civil Procedure Rules (‘CPR’).

However, all current and new proceedings for possession are ‘stayed’ for 90 days - that is to say for a period between 27 March and 25 June 2020 - under a Practice Direction (PD) to the CPR. PD 51Z also provides that the period of the stay may be extended to any date before 30 October 2020.

We have also found that that some courts in London are starting to return possession proceedings (even those sent for issue before PD51Z came into force) unissued, citing staff shortages and the need to keep backlogs of cases manageable.

Check your position with your local courts and work with them, as there will most likely be an increasing need to deal with more urgent injunctions in anti-social behaviour cases.

What period of notice do I have to give?

Section 81 and Schedule 29 of the Act extends - to three months - the notice period that must be given in respect of any notice served between 26 March and 30 September 2020, where the tenant is:

• an assured, or assured shorthold, tenant (under the Housing Act 1988)
• an introductory or secure tenant (under the Housing Act 1988)
• a statutory or protected tenant (under the Rent Act 1977).

The same period applies to demoted or flexible tenancies.

This three-month period applies whether discretionary or mandatory grounds are relied upon and, in the case of possession under Ground 2 of the 1985 Act or Ground 14 of the 1988, you cannot issue proceedings immediately after a notice has been served, prior to the restrictions in the Act no longer applying.

Technically, you can apply to dispense with the need for service of a notice, but we would continue to advise providers to issue compliant notices in all cases but to consider injunctions in cases where there is serious anti-social behaviour. They may include exclusions but, again, we advise clients to consider applying for exclusion in only the most serious of cases and where there is no other effective alternative: Courts will be reluctant to exclude anyone from their home under a Civil Injunction where a public health emergency requires them to stay at home.

Notices served before 26 March 2020 which give less than three months’ notice remain valid and proceedings can be issued upon their expiry.

However, the Act provides that the date of 30 September 2020 can be extended but this would not appear to invalidate any notice served before the extension.

What about the notice periods where the tenant has died or unlawfully sublet the property?

Where an assured or secure tenant dies, the tenancy will cease to be an assured or secure tenancy unless there is someone who has succeeded to the tenancy under the relevant Housing Act. However, the remaining tenancy will still need to be ended by notice to quit served on the Personal Representatives of the deceased tenant and the Public Trustee in the usual way.

Likewise, where an assured or secure tenant has unlawfully sublet their property and lost security of tenure, the remaining contractual tenancy will still need to be ended by notice to quit.

In such cases, the notice period is not affected by the Act i.e. it remains a minimum of 4 weeks.

However, given that COVID-19 is causing delays to deliveries by the Royal Mail, and many government departments and agencies are operating with reduced staffing levels, we would advise giving a longer notice period in any case where a Notice must be registered with the Public Trustee. Post the notice to both the PRs and the Public Trustee by First Class Post on the same date and ensure a copy is hand-delivered to the Property at the same time.

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.