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Beyond the courts closing - possession during a pandemic

By James Wood, National Residential Landlords Association

One of the key elements that the Beyond Section 21 report highlights is the strain that will fall on the courts when Section 21 is removed. With caseloads set to triple after the removal of Section 21, lengthy delays are incredibly likely without significant reform to the way the courts and the bailiffs operate.

Landlords who sought possession in 2020 will already be familiar with lengthy delays to the court process. Since 27 March, landlords have had to cope with a variety of impediments to possession; extended notice periods, a total suspension of possession hearings, bailiffs being unable to enforce warrants during lockdowns or in tier 2 and 3 areas, new rules around restarting claims and how cases will be allocated by the courts. As a result, these temporary changes due to the pandemic have served to illustrate how this increasing strain will further extend the already unreasonable wait times landlords experience.

How were the courts operating prior to lockdown?

Most Section 21 cases were dealt with in the courts via the accelerated possession procedure. This simple process requires no face to face hearings, reducing the time needed to process claims and the administrative burden on the courts as a result.

Despite the relative efficiency of this process, in many areas of the country the court system was already stretched beyond its limits prior to the pandemic. The average time taken to regain possession varied wildly across the country, effectively creating an enforcement postcode lottery. Landlords in London are particularly impacted by this lottery, with waits of more than 34 weeks for a bailiff after starting a claim.

It is little surprise then that many landlords were reporting significant dissatisfaction with the timeliness of the courts well before the pandemic. When the RLA surveyed landlords in 2019, only one in five thought the courts provided a reliable and timely service.

Waiting since 2019

To prevent tenants being evicted as a result of the pandemic, the Government suspended possession proceedings between 27 March and 20 September 2020. This suspension applied to new possession claims brought during the pandemic, but it also applied to cases that had been ongoing for some time beforehand as well. Including those landlords who were waiting on a bailiff to enforce their existing possession orders.

Given the wait times for bailiffs in the worst performing areas, many landlords who had started their possession claims in September 2019 onwards found their bailiff appointments cancelled as a result of the pandemic. This was understandably frustrating for landlords as they had already established they were entitled to possession but still had to wait more than a year to regain possession.

For those landlords in Tier 2 or Tier 3 areas the wait for a bailiff will continue into 2021. The Government issued guidance to bailiffs that they should not enforce a warrant where local restrictions prevented households gathering indoors or where the tenant was covid-symptomatic. This has resulted in some last minute cancellations as tenants claim covid symptoms at the point the bailiff arrives.

In places like Bolton, placed into local restrictions before the courts reopened, this means the rules of possession have been effectively suspended for nearly 10 months. As the vast majority of landlords seek possession because of arrears this delay has proved to be extremely costly. In one case the NRLA is aware of, the tenant had abandoned the property prior to the pandemic, and stopped paying rent in 2019. However due to local restrictions in Manchester the landlord is still unable to regain possession to this day.

Whether this lengthy delay was entirely lawful is also in question. Initially bailiffs were not enforcing warrants on the basis of guidance. It was only after the second national lockdown in England began that the Government legislated to ensure that bailiffs would not enforce until January 11 2021 except in certain extreme cases.

In Wales, bailiffs continue to follow the guidance only. As a result, their refusal to enforce possession orders remains legally questionable while there is no legislation preventing enforcement.

Restarting claims

Those landlords still waiting for their day in court also had to cope with delays while they waited for the possession stay to lift, including one last minute extension.

Once the courts did finally reopen, landlords had to navigate a substantially changed system. Recognising that the courts could not cope with the backlog built up in the previous six months, measures were put in place to restrict and manage the flow of cases in the new socially distanced courts.

Landlords who had already started possession claims were not placed back into a queue. Instead, they were required to reactivate possession proceedings manually via a reactivation notice. Some landlords calling the advice line have also reported that their cases have been lost, requiring the case be started again from scratch.

Once reactivated, cases were not allocated for hearing based on when they were originally begun, and they were not expected to be heard within 8 weeks, as they were prior to lockdown. Instead, hearings can now be scheduled further into the future, with priority given to cases involving anti-social behaviour or extreme rent arrears of 12 months or more.

To manage the flow of cases, the process is now split into two hearings; a review and a substantive hearing. The review hearing is heard remotely and is designed to reduce the workload on the courts by screening out cases were paperwork has not been filed correctly ahead of the substantive hearing.

At the bottom of this new priority system sit the Section 21 notices. As part of the new procedures for allocating cases, accelerated possession claims are no longer scheduled in a normal manner. Instead, the courts are expected to use the time freed up by hearing cancellations to look over these claims.

Given the low priority of accelerated possession this has understandably made grounds-based possession more attractive to landlords, particularly where it may allow the landlord to access justice faster via a shorter notice period.

This is only sensible with the latest statistics showing a huge increase in national wait times for possession orders and bailiffs as a result of the possession stay. The alternative is to hope that the property is in an area with relatively few reactivated claims or that the landlord is lucky enough to have a lot of hearing cancellations to allow the courts time to review their Section 21 claim.

New claims, new notice periods

While changes to the court system frustrated landlords with existing claims, those who were just starting to seek possession had to contend with a series of changes to notice periods, the forms being used, and had new procedures to follow once they do reach court.

Initially, all notice periods were extended to three months in England and Wales. Later this was changed to be six months in Wales in most circumstances. In England, the position is more complex. Notice periods can vary substantially based on the type of notice used, the grounds being used, and the amount of arrears involved in the case.

It is little surprise that landlords calling the NRLA advice line have reported finding the new notice requirements confusing and difficult to comply with. Increasing the chances the notice will be defective and potentially forcing the landlord to restart possession from scratch.

In conclusion

While some landlords are starting to receive their possession orders, lengthy delays are expected for quite some time to come. Particularly in areas like London where there was already a backlog prior to the pandemic and in those areas like Manchester where possession has been effectively stopped since March.

Given the scale of the delays and the cost to landlords it is imperative that resources are allocated appropriately to ensure that wait times are reduced by the end of March.

One potential option would be to use the bailiffs who are unable to enforce in Tier 2 and Tier 3 areas to clear the backlog in Tier 1 ahead of time. This would allow the bailiffs in Tier 1 areas to then reciprocate when these other areas reduce their infection rates.

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