Residential property lawyer George Cohen of Irwin Mitchell discusses the potential legal issues for the lifting of the stay of residential possession proceedings and advises landlords to enter dialogue with tenants as soon as possible

Since 27 March 2020, most residential possession claims and proceedings seeking to enforce an order for possession by a warrant or writ of possession have been stayed (put on hold).

On 23 August 2020, Practice Direction 55C will come into force which sets out how residential possession claims will resume.

The practice direction provides a welcome procedure for both “reactivating” and issuing claims after the stay is lifted.

But landlords should be aware that whilst the stay ends on 23 August 2020, they will still have to comply with the practice direction for all new claims issued on or after 3 August 2020.

There are various measures that landlords will need to take to “reactivate” claims, which are set out in the practice direction (link here).

The key feature of this practice direction is that landlords will be required to file and serve a notice setting out what knowledge they have of how the tenant or their dependents have been affected by COVID-19.

In the case of claims brought before 3 August 2020, which have been stayed, the notice will need to be filed and served to “reactivate” the claim.

For any claims brought on or after 3 August 2020, the notice will need to be either filed with the claim form (section 21 claims) or brought to the possession hearing (section 8 claims) and served on the tenant 14 days beforehand.

Cases where a final possession order has already been obtained appear to be unaffected by the practice direction, so in these cases, it appears that the landlord can proceed to apply for an eviction appointment when the stay is lifted.

Problems may arise from the fact that the Practice Direction 55C notice requirements are ambiguous-

Firstly, there is no guidance as to what a judge will do if a landlord’s notice confirms that the tenant has indeed been affected by COVID-19.

Secondly, there is an obligation for landlords to inform the court what knowledge they have of the tenant’s circumstances as regards COVID-19.

However, there is no requirement for landlords to actually obtain this information. Accordingly, it has been suggested that landlords could just specify in their notice that the tenant’s circumstances are simply unknown.

We suggest that this would be a risky strategy.

Whilst the court’s discretion to make a possession order is limited with mandatory grounds, the court does have inherent and wide-ranging powers as to case management.

Consequently, we predict that judges may decide to stay proceedings where a tenant or their dependants have been affected by COVID-19. Similarly, judges could order a stay if the landlord states that the tenant’s circumstances are unknown.

The explanatory notes to the Civil Procedure (Amendment No. 4) (Coronavirus) Rules 2020 (which implements the practice direction) state that landlords “will be required to demonstrate that they have engaged with their tenants in an effort to find a solution before making a claim.”

We would therefore advise Landlords to enter into a dialogue with tenants to determine whether their tenant or their dependants have been affected by COVID-19.

If they have, landlords should consider whether they can agree a mutually beneficial compromise which would avoid the need for proceedings to be issued or resumed.

If the tenant ignores a landlord’s request for information, or refuses to engage, landlords should keep a record of their attempts and provide them to the court.

If a landlord fails to do this, or where a tenant has been affected by COVID-19, the court may stay the proceedings further to give the tenant some breathing space.

We hope that the obligations on landlords will be clarified in due course.

What is clear is that landlords can still expect to see delays for residential possession claims in the near future, and they should do everything they can to comply with the spirit of the practice direction.