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Breathing space and possession proceedings

Sarah Mills and Chris Sykes answer questions from housing advisers and solicitors about breathing space and mental health crisis moratoriums, and how they affect possession proceedings.

Published March 2023

Read part 2 of the breathing space and possession proceedings Q&A which covers the timing of a breathing space moratorium.

References to legislation in this article are to the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (DRS Regs).

Part 1: Possession hearings and orders

Possession orders during the moratorium, payments under a suspended possession order, possession orders on non-rent grounds, succession, and eviction during the moratorium.

My client has a possession hearing coming up. Can they enter a breathing space to stop the judge making a possession order on rent arrears grounds?

Chris says:

The client can enter a breathing space, but it does not prevent a possession order. 

When a client enters a breathing space moratorium and there are ongoing legal proceedings, a possession hearing can still go ahead, and the court can make a possession order. 

Regulation 10(3) states that action or proceedings may continue, which appears to offer the court discretion. We have heard anecdotally that some courts adjourn proceedings when a client enters a moratorium, so it is always worth asking the court to adjourn if this is necessary. The court can normally only adjourn for rent arrears claims on discretionary grounds, or in mortgage cases. 

My client has a suspended possession order for rent arrears. Do they have to make the payments during the moratorium? What happens if they don't?

Sarah says:

Yes, your client should pay the arrears in line with the suspended possession order if they can.

If they do not keep up with payments the possession order cannot be enforced by a warrant during the moratorium, as it would be a step to enforce a moratorium debt. It can be enforced after the moratorium ends.

My client has a possession order on antisocial behaviour and rent arrears grounds. Can they be evicted during the moratorium?

Chris says:

Yes, the client could be evicted on antisocial behaviour grounds. 

A moratorium will prevent enforcement of a moratorium debt during a moratorium period under regulation 7(1). If possession proceedings are not on rent arrears grounds a moratorium will have no effect at all, and the eviction can still go ahead. 

Check the possession order to see which grounds are stated. If there is a rent arrears ground and a non-rent arrears ground, then the warrant can be issued on the non-rent ground. 

My client has been refused permission to succeed to a tenancy. They have not paid any rent. Can they be evicted during the moratorium?

Sarah says:

Yes, your client can still be evicted during the moratorium.  

Your client does not have a tenancy. The tenancy still exists between the deceased tenant and the landlord, as a tenancy does not automatically end upon a tenant’s death. If your client cannot succeed to this tenancy, the landlord can take steps to end the tenancy and evict any occupiers living in the property. The basis or ground for possession would be the death of the tenant. 

For a breathing space or mental health crisis moratorium to prevent eviction, the action must be in respect of a moratorium debt under regulation 7(6). 

The possession action in this case does not relate to a moratorium debt and can therefore continue regardless of your client being in a moratorium. 

You could check why your client was refused permission to succeed, as some tenants have a legal right to succeed to a tenancy. 

My client was evicted on the basis of a debt during a breathing space moratorium. Can they get back into the property?

Sarah says:

Yes, your client can apply to court for a warrant of restitution which will allow them access to the property.

The High Court dealt with this issue and made such an order in the case of Lees v Kaye. This is covered by regulation 7(12).

This application can be made without having to give notice to the landlord or mortgage lender. There is no specific form for the application, so the client should use an N244.

Your client might also be entitled to claim damages. They should tell their debt adviser if they have a claim for damages, as it can affect certain debt solutions, like eligibility for a debt relief order. 

Part 2: Notifying the landlord and the court

How the landlord, the court, and court bailiffs find out about the moratorium, and how to prove the arrears were included. 

My clients' landlord said they don't know anything about the moratorium. Should they have been notified?

Chris says: 

Yes, the landlord should have been notified. 

The creditor receives a notification where a debt has been included in the application under regulation 37. The Insolvency Service will either email or post the notification. It is possible that the landlord has not received this or has misplaced it. 

Check with the debt adviser whether the rent arrears and the landlord’s details were listed in the moratorium application. 

For arrears to become a moratorium debt then the information must have been provided within the application under regulation 6(c). As long as the arrears were included, they are a moratorium debt whether the landlord received the notification or not.

If the rent arrears were missed out in error, then they can be added at a later date. 

How can my client prove to the landlord and the court that the arrears were included?

Chris says:

Your client can ask their debt advice provider for a copy of the Debt Respite Scheme register showing their moratorium 

The register entry shows the start date and end date, and evidence that rent arrears are a moratorium debt. 

The debt adviser might have listed rent arrears but included a letting agent as the creditor instead of the landlord. In Lees v Kaye, the judge held that listing an agent and not the creditor would still create a moratorium debt.

My client has been placed in a breathing space moratorium but is about to be evicted. How will bailiffs know not to evict them?

Sarah says:

The landlord or mortgage lender must notify the court that the client has entered a breathing space or mental health crisis moratorium if an eviction is scheduled under regulation 10. The court should then inform the bailiffs. 

As a precaution, you or your client can also contact the court to inform them that your client has entered a breathing space. We would advise you to contact the bailiffs directly using the details on the notice of eviction to make them aware. 

Some courts now have dedicated breathing space teams, so it seems they are starting to understand their duties and responsibilities when a debtor enters a Debt Respite Scheme moratorium.   

Shelter Legal’s Breathing space for tenants guide contains template letters to tell the landlord and the court about the moratorium. 

Further resources

Shelter Legal

Breathing space and mental health crisis moratoriums – different types of moratorium and their effects on possession action

Guide to breathing space for tenants in arrears – an easy-access guide to the effect of a moratorium on possession proceedings from notice to eviction

Debt case law summaries – contains a breathing space section with key cases, including Lees v Kaye mentioned in this article

About the authors

Sarah Mills and Chris Sykes work for Shelter's Specialist Debt Advice Service, answering complex queries from professionals about debt cases.