Covid-19: Reactivation of possession proceedings

Procedure that landlords and mortgage lenders must follow during the interim period until 30 November 2021.

This content applies to England

The interim period

Practice Direction 55C sets out a new court process in force from 20 September 2020 until November 2021. This is called the interim period.[1]

Claimants who started a claim for possession have to follow different rules depending on when their claim started.

Claimants include:

  • landlords

  • licensors

  • mortgage lenders

The requirement to hold a review appointment prior to a substantive hearing is not contained in Practice Direction 55C. See the Overall arrangements for possession proceedings in England and Wales for instructions regarding listing review and substantive hearings. The Overall arrangements do not contain a fixed end date.

Rules for reactivating claims for possession made before 3 August 2020

These rules apply to possession claims:

  • brought before 3 August 2020

  • where no possession order was made before 27 March 2020

The claimant must serve a reactivation notice on the court confirming that they wish the case to be listed, relisted, heard or referred to a judge.[2]

Reactivation notices

Unless proceedings relate to an appeal, the reactivation notice must:

  • set out what the claimant knows about the effect of the Covid-19 pandemic on the defendant and their dependants

  • be accompanied by an updated rent account for the previous two years if the claim is based on rent arrears

The reactivation notice must be served:

  • if a trial date was set, no less than 42 days before the hearing, or[3]

  • in any case, before 4pm on 30 April 2021[4]

If a claimant misses the deadlines for serving a reactivation notice, the court will stay the claim. The claimant must apply to court on form N244 and pay the relevant fee to have the stay lifted.

Landlords who obtained a possession order or a warrant of possession before 27 March 2020 do not need to use a reactivation notice.

Rules for reactivating claims where case management directions made

Where case management directions were made before 20 September 2020, in addition to the reactivation notice, the claimant must file with the court and serve on the defendant:[5]

  • a copy of the last directions order together with new dates for compliance with the directions taking account of the stay before 20 September 2020

  • either a draft order setting out additional or alternative directions (including proposing a new hearing date) which are required; or a statement in writing that no new directions are required and that an existing hearing date can be met

  • a statement in writing as to whether the case is suitable for hearing by video or audio link

A defendant who disagrees with any of the above matters has 14 days from the service of the reactivation notice to file and serve their response.[6]

If the claimant did not comply with all the requirements before 4pm on 30 April 2021, the claim was automatically stayed.[7]

Rules for reactivating claims for possession made from 3 August 2020

Where a claim was started on or after 3 August 2020, the claimant is not required to serve a reactivation notice.

The claimant must:[8]

  • bring to the hearing two copies of a notice that sets out what they know about the effect of the Covid-19 pandemic on the defendant and their dependants

  • serve on the defendant a copy of the notice no less than 14 days before the hearing

If the claimant is a social landlord, they must also bring to the hearing two copies of a notice setting out how they have complied with the Pre-Action Protocol for Possession Claims by Social Landlords and serve a copy of this notice on the defendant.

Court forms, including reactivation notices, are available from Gov.uk.

Accelerated possession procedure claims in the interim period

Landlords of assured shorthold tenants can use the accelerated possession procedure to bring a claim for possession against their tenants.

For claims brought on or after 20 September 2020, the landlord must file a notice setting out what they know about the effect of the Covid-19 pandemic on the tenant and their dependants together with the claim form.[9]

If the tenant disputes the landlord’s evidence, the court may decide to hold a hearing.

Court hearings in the interim period

Where a hearing is listed or relisted as a result of the reactivation notice, the parties should receive at least 21 days’ notice of the review hearing.[10]

Between 23 August 2020 and 28 March 2021, the standard eight weeks’ period between issuing the claim and the hearing date does not apply.[11] Cases may be listed up to about three months ahead and a hearing date will not be fixed at the time when the claim form is issued by the court.[12]

The Master of the Rolls’ Working Group has published the Overall Arrangements for Possession Proceedings in England and Wales (“the Overall Arrangements”). Under these arrangements, the courts will schedule a:[13]

  • review appointment

  • substantive hearing

Review hearing

There is no fee for the review hearing and the parties do not attend court. The defendant will receive a written notification from the court explaining how to get in touch on the day of the review appointment and how to contact the duty adviser.

The claimant is required to provide the court with an electronic bundle (with a paper bundle allowed as an alternative) and to confirm to the court that a paper bundle has been provided to the defendant (with an electronic copy in addition where the defendant is able to receive that). This must be done at least 14 days before the review date.[14]

If the case is not resolved at the review hearing, the judge will consider the bundle of documents provided by the claimant and the court file.

If the claimant’s documents are in order, the case will proceed to a substantive hearing 28 days later. If the claimant’s documents are not in order the court can be expected to dismiss the claim (with liberty to the claimant to apply for reconsideration at an oral hearing) or they could adjourn, with or without directions.[15]

Agreement at the review appointment

The case could be resolved by agreement at the review appointment. The defendant should not agree to give up possession unless they have taken legal advice.

The Overall Arrangements state that, to ensure that compromise is not deterred, local authorities will be expected to take the approach that signing a consent order or agreeing an order for possession, in itself, does not mean that a tenant or borrower should be found intentionally homeless.[16] Defendants should not rely on this guidance. Legal advice is available from the court duty adviser on the review date. The court will provide details of how to contact the adviser.[17]

Mediation

A pilot mediation service for landlords and tenants in possession cases is available from 1 February 2021. The service is available at the review hearing stage.

The process is:

  • free

  • voluntary

  • telephone based

  • conducted by an independent third party

The case can be referred for mediation at the review stage if:

  • it is deemed suitable for mediation

  • all parties agree to use the service

An agreement can be reached only if all parties agree. It is advisable to seek independent advice before entering into an agreement. Duty advice is not available for the mediation process. Mediation agreements can be enforced in the courts if the agreement is broken.

If an agreement cannot be reached, the case will proceed to the substantive hearing. The court will not have any information about the mediation details.

The Rental Mediation Service guidance contains more information about the mediation service.

Substantive hearing

At the substantive hearing, the court considers the possession claim and the defence, and the parties’ presence is required.

The possession hearing is an in-person hearing, unless:

  • both parties agree to a remote hearing (subject to the court’s agreement)

  • contingency measures are in place

  • the landlord is using the accelerated procedure for ending an AST and there is no hearing[18]

Housing Possession Court Duty Scheme

Non-means tested advice and assistance is available at the review appointment, and the substantive hearing.

Duty scheme advice will be offered flexibly, including by phone, video or in person. In person advice may be offered either at the court or in another location. Each court will have its own arrangements.[19]

During the Covid-19 pandemic, cases may be listed in temporary court buildings.

End of stay on proceedings

The stay on possession proceedings started on 27 March 2020 and lasted until 20 September 2020.[20] Claims brought during this period were put on hold by the courts.

Covered by the stay:

  • applications for a possession order, including variations

  • applications to enforce a possession order by a warrant or a writ

  • appeals of possession orders[21]

Not covered by the stay:

  • claims for injunctions (injunctive relief)[22]

  • claims against trespassers to which rule 55.6 CPR applies

  • applications for interim possession orders against squatters

  • applications for case management directions where the parties are in agreement

The stay protected all tenants and contractual licensees with basic protection.

Excluded occupiers, including lodgers and those in interim accommodation awaiting a decision on their homeless application, did not benefit from the stay because they are excluded from the right to a court order.

Additional protection for homeowners

Homeowners had additional protection until 1 April 2021 under FCA guidance. The stay on possession to 31 May 2021 applied to mortgage possession.

Last updated: 23 July 2021

Footnotes

  • [1]

    Para 1.1 PD 55C; Civil Procedure (Amendment No. 4) Rules 2021 SI 2021/855.

  • [2]

    Para 2.1 PD 55C specifies that the reactivation notice may be served by any party. However, it is more likely to be served by a landlord or a mortgage lender.

  • [3]

    Para 2.5 PD 55C.

  • [4]

    Para 2.6 PD 55C.

  • [5]

    Para 5.1 PD 55C.

  • [6]

    Para 5.2 PD 55C.

  • [7]

    para 5.3 PD 55C.

  • [8]

    para 6.1 PD 55C.

  • [9]

    paras 1.7, 6.2 PD 55C.

  • [10]

    para 3.1 PD 55C.

  • [11]

    para 4.1 PD 55C.

  • [12]

    Overall Arrangements, paras 32-42.

  • [13]

    Overall Arrangements, paras 46-65.

  • [14]

    Overall Arrangements, para 49.

  • [15]

    Overall Arrangements, para 54.

  • [16]

    Overall Arrangements, para 53.

  • [17]

    Overall Arrangements, para 46.

  • [18]

    Overall Arrangements, para 15.

  • [19]

    Overall Arrangements, paras 46-48.

  • [20]

    r. 55.29 Civil Procedure Rules 1998, as amended by r.2(a)-(b) Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020/889; Practice Direction 51Z, 27 March 2020, as amended by the 120th Practice Direction, 20 April 2020; Arkin v Marshall [2020] EWCA Civ 620; r. 55.29 Civil Procedure Rules 1998, as amended by r. 2(a)Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020 SI 2020/582.

  • [21]

    Hackney LBC v Okoro [2020] EWCA Civ 681.

  • [22]

    University College London Hospitals Foundation Trust v MB [2020] EWHC 882 (QB).