Ban on Evictions Gets a Further (Short Notice) Extension

11th January 2021 Commercial Litigation

Back in November the government brought into effect a ban on County Court Bailiffs and High Court Enforcement Officers (Sheriffs) enforcing possession orders. I have said more about this and how it came to be here. That ban was due to end on 11 January 2021 which would have meant that any landlord with a valid possession order could have applied to have it executed.

In what is becoming a tediously familiar pattern the government said almost nothing about what was going to happen on 11 January, despite numerous parties making clear that they had to consider the longer term basis for the PRS during Covid. They then, continuing the pattern, at the last minute extended the ban on 8 January, with some small modifications, until 21 February 2021.

In general terms then, it is not possible to enforce a possession order obtained against a residential occupier. The courts will, albeit with restrictions, hear the case once the rather longer notice periods that have been put in place run out but you will not be able to enforce the possession order if the occupier then refuses to leave.

There are some exceptions however. Possession orders for Housing Act 1988 tenancies obtained for anti-social behaviour or where a tenant has given false references can be enforced. As a more substantial change from the previous position, any possession order obtained where the rent arrears is equivalent to, or more than, six months’ rent is also enforceable. Under the previous version of the ban, this only applied if the arrears had been accumulated before 23 March 2020 and it had to be nine months’ rent. I suspect this might have something to do with the fact that the government had been threatened with judicial review over the rather odd position on arrears before and if it had continued in this version of the ban that case might have proceeded. Squatters can also be removed.

However, the exceptions only extend to Housing Act 1988 tenancies, as well as covering the similar possession grounds under the Rent Act 1977 and for social tenancies. However, residential licences and residential tenancies outside the Housing Act 1988 are not covered at all and these tenant cannot have a possession order enforced against them. This is a continuation of the perverse exemption for these classes of occupiers who have traditionally been afforded less protection by the law. Whether the lack of exemptions for them is an oversight or a deliberate policy decision is unclear.

In summary then, this means that landlords can go to court, subject to the longer notice periods and the longer-winded possession process but will only be able to enforce possession orders in the most egregious cases.

This is a decision which will not please many people. There will be some relief for landlords with substantial rent arrears who might have despaired of ever repossessing their properties. However, many landlords will continue to be in limbo. Tenants are not much better off. They have little idea as to what protection they will have in February, if any, and their position come March is potentially very precarious as the longer notice periods and new court processes are supposed to end then. No doubt these will be extended but, again, probably at the last minute and with random alterations. Undoubtedly a degree of flexibility is necessary in dealing with Covid-19 but there is flexibility and there is stoking uncertainty. The current approach seems rather more of the latter.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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