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Property possession: how do you proceed post-pandemic?

28 Aug 2020

 

The unprecedented impact of Covid-19 led to the Government introducing a stay in respect of all repossession proceedings and a ban on evictions by either writ or warrant. Initially the stay was for 90 days from 27 March 2020.   On 5 June 2020, it was extended for a further two months to 23 August 2020 and, on 21 August 2020, just two days before the ban was to be lifted, there was a further extension to 20 September 2020.   

 

Landlords, tenants and the legal sector alike are now working towards the 20 September date however all parties should (1) expect a delay in getting proceedings back up and running and evictions undertaken and (2) should be prepared for a further extension to the ban.   

In addition, notice periods have also been extended with landlords having to provide 6 months’ notice until at least the end of March 2021.   

 

Have you already issued proceedings? 

 

If so, the rules for re-listing proceedings issued prior to 3 August 2020 are as follows:  

 

- No stayed claim can be listed, relisted or heard until after the stay has been lifted and until a re-activation notice has been filed at Court and served on the other parties.    

 

- Whilst there is no precedent form of re-activation notice, the notice must confirm that the party filing wishes the matter to be listed or re-listed, must set out the party’s knowledge on how the Covid-19 pandemic has affected the tenant and any dependants and, where necessary, provide the Court with up to date rent arrears.  

 

If no re-activation notice is filed by 4pm on 29 January 2021, the claim is automatically stayed until a formal application to lift the stay is made after this date.  

 

If not, all new claims issued including those from 3 August 2020 onwards must include a notice setting out the party’s knowledge of how the Covid-19 pandemic has impacted the tenant/s and their dependants to be served on the tenant with the claim form and an updated notice must be filed in anticipation of the possession hearing itself. If you have issued post 3 August 2020 and have not complied with the above, you should endeavour to ensure that the notice as to the impact of Covid-19 is filed and served as soon as possible.  

 

Impact on insolvency practitioners seeking possession of a bankrupt’s property  

 

CPR PD 51Z and 55C applies to all possession proceedings and orders unless there are exceptional circumstances.  These exceptional circumstances include claims against trespassers or persons unknown, interim possession orders and case management directions agreed by all parties.  

 

These exceptional circumstances do not extend to the insolvency practitioners’ duty to realise the bankrupt’s assets.  The Court has recently confirmed, on appeal, that it is in the public interest to uphold the stay where possible and protect renters and homeowners alike for the duration.  This sets a high bar for lifting the stay.  

 

Insolvency practitioners may however have another string to their bow.  This string will however only be applicable where a property is registered in the sole name of the bankrupt and there is no spouse, partner or children living at the property with the bankrupt.  In such a case, a trustee in bankruptcy will be able to make an application for delivery up of a property pursuant to Section 363(2) Insolvency Act 1986.  This is because, upon bankruptcy, a property owned solely by the bankrupt falls within the bankrupt’s estate and automatically vests in the trustee in bankruptcy.  

 

Indeed if the property is solely owned and vacant, no application or court order is required as Schedule 5 Insolvency Act 1986 provide the trustee in bankruptcy with the power to sell such a property and execute a deed without a court order.  

 

Practically, the comfort of a possession order, especially where it is not known who resides in the property, may outweigh the delay which will be inevitable in these times. Indeed, the additional requirements as set out above are not so overly onerous on those seeking possession orders.  

 

For more information, please contact Sarah Farish at sf@srflegal.co.uk

 

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Short Richardson & Forth, 4 Mosley Street, Newcastle upon Tyne, NE1 1DE

Tel: +44 (0)191 232 0283  ·  Email: info@srflegal.co.uk

 

Short Richardson and Forth Solicitors Limited is a private limited company registered in England and Wales under company number 10572065, authorised and regulated by the Solicitors Regulation Authority No 637150.

Short Richardson and Forth Solicitors Limited is a private limited company constituted and run in accordance with the provisions of the Companies Act 2006. The term “partner” has been used to denote individual senior solicitors employed by Short Richardson and Forth Solicitors Limited.