Residential possession claims – the introduction of the “Reactivation Notice”

24th July 2020 Commercial Litigation

In my earlier article published on 30 March 2020 I talked about the restriction on possession claims being pursued in the courts originally lasting until 25 June 2020. Following the government’s decision to extend this to 23 August 2020 (which period could conceivably be extended still further, although this is less likely than previously thought given the recent relaxing of the lockdown provisions allowing, for example, the re-opening of commercial premises) the civil procedure rules have been formally amended and a new procedure instigated which is designed to slow down the likely pressure on the court system after this date and until 28 March 2021 when the procedure will automatically end unless extended beyond then.

Landlords seeking to resurrect their possession claims which were issued before 3 August are not allowed to rest on their laurels. Instead, to obtain a hearing where none has yet been listed they have to file at court a “reactivation notice”, stating that they wish the case to be listed by the court to be dealt with and must set out the knowledge, if any, that the landlord has about the effect of COVID-19 on the tenant and their dependants. It is likely that a letter containing this information will suffice unless any standard form is produced and s prescribed to be used.

Where there is any claim for rent arrears then an up-to-date rent account must be provided, for the previous two years or back to the start of the tenancy if earlier. This will likely be for the court to consider whether the tenant paid rent regularly before the COVID-19 outbreak and assist it in considering whether any recent non-payment was only due to COVID-19. 

Where case management directions for trial were made before 23 August 2020, landlords must accompany their reactivation notice with a copy of the last directions court order with new dates for compliance of those outstanding, a draft order with a new timetable and hearing window, if any existing hearing cannot be met and a statement saying whether the case is suitable for a remote hearing.

The court must give at least 21 days' notice to all parties of any hearing listed in response to a reactivation notice. Landlords must file at court before and produce at the hearing a notice updating their knowledge, if any, that they have as to the effect of COVID-19 on the defendant and their dependants.

If no reactivation notice has been filed by 29 January 2021, the claim will be automatically “stayed” so that it will not proceed until such a notice has been filed and will be put at the back of a very long queue. No reactivation notice will be required where a final possession order has already been made so that landlords can then enforce the order after 23 August.

For accelerated possession claims (where there may be no hearing required) brought before 3 August, landlords should file a request in writing for the court to consider the claim and it will be prudent to file with this request the same knowledge about the effect of COVID-19 on the tenant and their dependants. For those claims brought on or after 3 August, landlords should file this knowledge file with the claim.

It remains to be seen how this procedure will work in practice but clearly any landlords not “on the ball” with these latest amendments to what is already a complicated procedure will find themselves at the back of a very long queue and their claims for possession and recovery of rent arrears will take even longer than might otherwise have been the case.

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

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