Preventing Evictions Lawfully, but Untidily

17th November 2020 Commercial Litigation

The government has just laid the, snappily-named, Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 which comes into force on 17 November. The run up to these regulations is quite interesting and, in my view, says a lot about the approach of the government to the PRS right now.

Initially as the courts reopened in September everyone expected there to be a movement to start processing every aspect of stalled court possession processes, from commencement of proceedings right through to enforcement of orders. Rather than the great “cliff edge” of evictions that had been talked of I was expecting it to be rather more like a large behemoth slowly unlimbering itself and getting up to speed. That did not in fact happen though. Initially in areas of local lockdown, then in areas subject to tier 2 and tier 3 lockdowns it emerged that there was to be no enforcement of warrants or writs of possession. Like many people I initially assumed that this was in a set of regulations somewhere. However, I could not find this regulation and slowly the realisation dawned on me that it wasn’t in any piece of legislation. In fact, this was all being done based on an internal HMCTS policy that nobody was prepared to publish and due to a letter sent to the High Court Enforcement Officers Association by the Lord Chancellor. I wrote more about why this was all unlawful here. However, as a summary the Lord Chancellor simply has no right to go round deciding which court orders can or cannot be enforced and against whom. If government ministers could do this then there would be little need for there to be a commission looking at Judicial Review as government ministers could simply decide to ignore orders they didn’t like!

As a result of the situation I was instructed to send a pre-action protocol letter threatening Judicial Review to the Ministry of Justice. This was sent on Friday 6 November and sought an answer by the following Friday. The government lawyers acknowledged the letter and promised a response by 19 November, a week later than asked. In the meantime the legislative drafters were clearly burning the midnight oil as they sought to rush out some regulations to make the unlawful process lawful.

Which brings me to the new regulations. Firstly, they only apply in England. So in Wales either landlords can use bailiffs and High Court Enforcement Officers or alternatively they are acting unlawfully by refusing to take action. Presumably the Welsh assembly will now hurry out their own regulations.

The regulations simply ban any person from attending premises to execute a writ or warrant of possession. This expires automatically on 11 January 2021. This means that for most landlords, even if they secure a possession order they cannot make use of it until after that date. However, they should be able to request a date and have one put in the diary for after that date as the regulations simply prevent the execution of a warrant or writ, not its preparation. This also means that the short gap between the end of the current lockdown on 2 December and the start of the Christmas stay on 11 December, during which some landlords may have been hoping for an eviction to be carried through has gone.

There are also some exceptions. Evictions of squatters can go ahead as can evictions where there is a court order for possession citing an anti-social behaviour ground such as 7A or 14 or citing false references, ground 17. It is also possible to go ahead if an order was made in respect of one of the rent arrears grounds and there are more than 9 months’ rent arrears at the date the court order was made. However, this only takes into account rent arrears that accrued prior to 23 March 2020. Therefore, this will only apply to tenants who stopped paying their rent back in June 2019 and have paid nothing between then and March 2020. This is surprising as it simply amounts to a blanket forgiveness of rent from last March. The regulations also prevent any form of execution against goods so it would be difficult for a landlord to get an order for the debt and enforce that. There are no exemptions in respect of tenancies which fall outside the Housing Act 1988, residential licences, student tenancies or holiday lets so all of these tenancies and licences are now apparently exempt from eviction. I can see some universities getting annoyed about this.

This is a bit of a mess. Clearly it has been rushed and my threats of court action have now doubt increased the rush. But this never needed to happen at all. It could all have been done properly months ago in a sensible fashion without under the table guidance and letters and without the threats of court action.

So what does this tell us about the government approach to the PRS. Primarily, it seems, that they don’t actually have one. They clearly want there to be a PRS but there seems to be little understanding of what basis that PRS is supposed to operate on. That runs the full gamut from who landlords ought to be through to who should be accommodated and swings through the basis of that accommodation and on what basis it should end. Every aspect of the approach to the PRS has shown this. From the confused imposition of regulation from several different government departments with little effort to make that work in a connected fashion. To the approach to Covid, which has sought to tell landlords, many of whom are individuals and some of whom already had problems with their tenants that they just cannot evict them for a variable, but hazily specified, period of time. At the same time, little is done to assist tenants to pay rent arrears (as it has been in Scotland and Wales) and no money is made available to prevent unlawful evictions leading to a massive rise in unlawful “self help”. I am not taking a position on whether landlord should or should not be able to evict during the lockdown or who should bear the brunt of their losses. The issue here is that the government, who should have an idea and would have an idea if they actually had a clear PRS strategy, are apparently not taking a position either.

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

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