UK COVID-19: Residential possession proceedings during lockdown- is the new practice direction too wide to work?

Hogan Lovells

Hogan Lovells

The UK government’s response to the COVID-19 outbreak has included various steps intended to relieve pressure on residential property tenants, whose livelihoods and income might have been seriously impacted by the current lockdown. Those steps have included the extension of statutory notice periods for landlords who want to terminate residential tenancies, and extra time being given to tenants who find themselves in breach of their tenancy agreements (for example, because they are unable to pay their rent).

Those measures were set out in the Coronavirus Act 2020. At the same time, a new practice direction “51Z” was added to the Civil Procedure Rules (the set of procedural rules that governs the processes for civil proceedings through the court system) staying for 90 days all existing court proceedings for possession orders and warrants of possession. Because an owner cannot generally recover possession of residential property without a possession order, this means that any attempt by an owner to recover possession of property from an occupier who is unwilling to leave has been put on ice for 90 days (or more if, as expected, the 90 day period is extended). The effect of the new practice direction is wide-ranging, and it does not appear to distinguish between (for example) tenants who have simply outstayed their welcome, and squatters who have entered property unlawfully.

Within a month of the new practice direction coming into effect, it has already been challenged in court. The case of Arkin v Marshall is a claim brought before the current lockdown, by a lender seeking to enforce its rights as a mortgagee of property. The proceedings are possession proceedings caught by the new practice direction 51Z . The applicant, apparently eager to press on without being delayed, asked the court to determine whether the practice direction has to be complied with (so staying the proceedings for 90 days) or whether the court can disregard the practice direction and require the parties to comply with upcoming directions for exchange of witness statements and expert reports, pushing the case towards trial. The judge decided in the first instance hearing that the 90 day stay had to be complied with, without exception.

Given the purpose of this particular practice direction, as part of a suite of measures intended to slow down or halt the residential possession process during the COVID-19 lockdown, one might expect compliance to be strictly enforced, but with consent having been given for a leap-frog appeal straight to the Court of Appeal, we might soon see a Court of Appeal decision about whether judges have a discretion to ignore this and other Civil Procedure practice directions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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