An update on possession claims: overall arrangements, reactivations notices and other developments

On 14 September 2020, the Master of the Rolls’ working party finalised its guidance Overall Arrangements for Possession Proceedings in England and Wales: so that the legal system, and in particular the courts, can manage housing possession cases once the stay is lifted next week. It also seeks to manage the expectations of both landlords and tenants. The guidance document:

(a) sets out various milestones over the next few weeks and months

(b) provides an example of a “typical listing day” for possession hearings

(c) gives an example timeline for a possession claim starting on 21 September, and

(d) considers (among other things):

• Practical arrangements for the courts and offering in person hearings to possession claims subject to some exceptions;
• the need for the “enhanced information” and other documents with reactivation notices;
• Covid-19 case marking;
• Listing cases;
• Prioritisation of cases;
• Legal advice and assistance for defendants;
• Review dates;
• Mediation; and,
• Substantive hearing dates.

To help facilitate settlement in cases, the overall arrangements set out that local authorities will be expected to take the approach, guided by the Ministry of Housing, that signing a consent order or agreeing an order for possession, in itself, does not mean a tenant or borrower should be found intentionally homeless. It is unclear whether this will be formulated into a guidance document. So watch this space.

Also on 14 September,  the Financial Conduct Authority published updated guidance. Claims by mortgage lenders are subject to regulatory or voluntary schemes under which, as a matter of good practice and with appropriate exceptions for priority cases, claims are postponed to 30 October 2020. After 30 October claims will still need to proceed in an orderly sequence with proper conduct and best practice observed.

On 15 September 2020, the Government also produced reactivation notices and guidance notes for both claimants and defendants. This is not a prescribed form.

As can be seen in the overall arrangements, there is more guidance to come over the next few days.

• The Ministry of Housing will publish by 18 September 4 sets of guidance for private landlords, social housing landlords, tenants of private landlords and tenants of social housing landlords. The guidance encourages advice, discussion and compromise, with court proceedings as a last resort.
• The National Residential Landlords Association will publish a “Pre-Action Plan: Managing arrears and avoiding possession claims” by 18 September setting out 9 “golden rules” and emphasises that “in unprecedented times … it is incumbent on tenants and landlords to engage with each other, trying all available avenues to reach an agreement before seeking repossession through the courts”. It will also issue 5 steps to take before notice is issued (including under s21 and s8, ground 8).
• Other national landlord and lender associations remain committed to encouraging their members only to bring forward cases where absolutely necessary. Guidance is likely to be published on relevant websites.

If you would like any advice on these issues or any related matters, our housing barristers can help, please contact our clerks for details.