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The halt on evictions (again)

Amy Kelly analyses the latest prohibition on enforcement of some possession orders in England and Wales.

Just when landlords thought there was some level of normality returning to some parts of the England and Wales with respect to obtaining and enforcing possession orders following the expiry of notices we have Lockdown III and the new regulations from both the English and Welsh governments to prevent some evictions.

Whilst courts are now engaged in reviewing and hearing possession claims and some trials are being listed, landlords will not be able to secure actual evictions:

  • in England before the 21st February 2021; and
  • in Wales before 31st March 2021

unless they fall within the national exemptions prescribed by regulations. Pessimistically, the English date seems likely to be extended given the current state of the pandemic.

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The English regulations can be found here The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (legislation.gov.uk)

The Welsh regulations can be found here The Public Health (Protection from Eviction) (Wales) (Coronavirus) Regulations 2021 (legislation.gov.uk)

The below article is a general explanation of the law and does not cover all possible scenarios and does not constitute legal advice. Please contact your social housing solicitor or a member of the housing team for advice about any particular case.

England

Warrants can still be executed in limited circumstances, for example where there is ASB, DV, some tenancy fraud, where at the date of service the bailiff’s notice/writ and at the date of execution the tenant owes at least 6 months rent, or where the absolute (secure - Ground 84A) or mandatory (assured- Ground 7A) is relied on.

The Regulations prescribe that unless one of the exemptions applies no-one can attend a dwelling to either:

(a) serve or execute a writ or warrant of possession (the actual eviction exercise;) or

(b) to deliver a notice of eviction. Somewhat unhelpfully, the regulations do not ascribe a meaning to a ‘notice of eviction’ but it is assumed that this is intended to mean the now usually at least 14 days' warning of the date of actual eviction rather than Notices to Quit or Notices Seeking Possession as the same wording is used in the amended CPR.

(see https://www.legislation.gov.uk/uksi/2020/747/article/16/made for the 14 day notice requirement under the Civil Procedure Rules as amended).

Warrants can still be executed in claims where:

  1. the occupants are trespassers who are essentially persons unknown (see Reg 2 (2) (a)). This is a repetition of the previous reference to trespasser where CPR 55.6 applies – the types of trespasser who did not enter onto the land with the landlord’s consent or licence and where stakes are used to display and serve proceedings. It does not include former licensees, whether protected or excluded against who a landlord has decided to issue proceedings on the basis of an expired NTQ;
  2. The landlord relies wholly or partly on section 84A - the absolute ground for possession for anti-social behaviour) of the Housing Act 1985(2) (see Reg 2 (2) (b)) or the assured tenancy equivalent mandatory ground 7A (see Reg 2 (2) (d));
  3. The landlord wholly or partly relies on Anti-social behaviour grounds (Ground 2 for secure tenancies (see Reg 2 (2) (c)), Ground 14 for assured (see Reg 2 (2) (d));
  4. The landlord wholly or partly relies on domestic violence grounds (Ground 2A for secure tenancies (see Reg 2 (2) (c)) and Ground 14A for assured (see Reg 2 (2) (d));
  5. The landlord wholly or partly relies on tenancy fraud – being induced to grant the tenancy by a reckless or deliberate false statement (Ground 5 for secure (see Reg 2 (2) (c)) and Ground 17 for assured (see Reg 2 (2) (d));
  6. In protected or statutory tenancies the landlord wholly or partly relies on case 2 under the Rent Act 1977 (suitable alternative accommodation provided or arranged by the housing authority) (see Reg (2) (2) (e));
  7. Where the court is satisfied that the case involves substantial rent arrears and the claim for possession included rent arrears grounds (Ground 1 for secure, Grounds 8, 10 or 11 for assured, case 1 for Rent Act 1977 tenancies) (see Reg 2 (3)). Substantial rent arrears means if the amount unpaid is at least equivalent to 6 months rent whenever they accrued (see Reg 2 (4), and presumably this means at the date the warrant is requested and notice of eviction served and at the date the warrant/writ executed – so if the tenant pays enough to bring the arrears below 6 months at any time prior to the execution of a warrant/writ, it cannot be executed; or
  8. Where the landlord relies wholly or partly on Ground 7 for assured tenancies (death of tenant and tenancy devolved under will or intestacy) (see Reg 2 (5)) but under Reg 2 (6) it is a requirement that the person attending at the dwelling house take reasonable steps to satisfy themselves that the dwelling house is unoccupied before (a) delivering a notice of eviction; or (b) executing a writ or warrant of possession. Presumably if the property is occupied a warrant cannot be executed on this basis.

The exemptions are limited and require reliance on specified grounds rather than conduct. As such, we are of the view that if you have not pleaded the relevant ground you now seek to rely upon, e.g. if you did not plead ASB in your original claim for example by issuing a claim on lower level rent arrears or a claim based on trespass following the expiry of a Notice to Quit, you will not be able to secure eviction during this halt even if there is now substantial ASB. You cannot rely on substantial arrears unless an arrears ground was pleaded.

Whether a drafting oversight or otherwise, we believe no warrants seeking possession against ‘left in occupation’ trespassers or former licensees can be executed. Whilst Regulation 2 appears under the heading ‘Residential Tenancies (Protection from Eviction)’ we consider this has no interpretative relevance – or else the reference to persons unknown trespassers as an exception would not have been needed. This view is supported by the accompanying explanatory memorandum. Consideration could be given to peaceably evicting excluded licensees by changing locks where the licence agreement permits this, Equality Act 2010 impact assessments have been done and where it is considered safe and proportionate to do so given the pandemic.

It is possible to apply to vary a possession order to rely upon new grounds for possession (as per Manchester City Council v Finn [2002] EWCA Civ 1998) but given the court backlog this is very unlikely to speed up eviction.

Of course, the courts are still granting injunctions where the evidence justifies it, including exclusion orders in the most extreme of cases, so our housing team can advise on, draft pleadings or appear in such claims if so needed.

Wales

Warrants can still be executed in limited circumstances, for example where there is ASB, DV, some tenancy fraud, or where the absolute (secure - Ground 84A) or mandatory (assured- Ground 7A) is relied on.

It appears that the Welsh Government and English governments actually put their heads together when drafting as the regulations are almost identical but not quite as there is no exemption for high level rent arrears.

These Regulations, like the English regs, prescribe that unless one of the exemptions applies no-one can attend a dwelling to either:

(a) execute a writ or warrant of possession (the actual eviction exercise;) or

(b) to deliver a notice of eviction. Again, unhelpfully, the regulations do not ascribe a meaning to a ‘notice of eviction’ but it is assumed that this is intended to mean the now usually at least 14 days warning of the date of actual eviction rather than Notices to Quit or Notices Seeking Possession as the same wording is used in the amended CPR.

(see https://www.legislation.gov.uk/uksi/2020/747/article/16/made for the 14 day notice requirement under the Civil Procedure Amendment rules).

Warrants can still be executed in claims where:

  1. the occupants are trespassers who are essentially persons unknown (see Reg 2 (2) (a)). This is a repetition of the previous reference to trespasser where CPR 55.6 applies – the types of trespasser who did not enter onto the land with the landlord’s consent or licence and where stakes are used to display and serve proceedings. It does not include former licensees, whether protected or excluded against who a landlord has decided to issue proceedings on the basis of an expired NTQ; and
  2. The landlord relies wholly or partly on section 84A - the absolute ground for possession for anti-social behaviour) of the Housing Act 1985(2) (see Reg 2 (2) (b)) or the assured tenancy equivalent mandatory ground 7A (see Reg 2 (2) (d));
  3. The landlord wholly or partly relies on Anti-social behaviour grounds (Ground 2 for secure tenancies (see Reg 2 (2) (c)), Ground 14 for assured (see Reg 2 (2) (d)).
  4. The landlord wholly or partly relies on domestic violence grounds (Ground 2A for secure tenancies (see Reg 2 (2) (c)) and Ground 14A for assured (see Reg 2 (2) (d))
  5. Where the landlord relies wholly or partly on Ground 7 for assured tenancies (death of tenant and tenancy devolved under will or intestacy) (see Reg 2 (2) (e) but it is a requirement that the person attending at the dwelling house take reasonable steps to satisfy themselves that the dwelling house is unoccupied before (a) delivering a notice of eviction; or (b) executing a writ or warrant of possession. Presumably if the property is occupied a warrant cannot be executed on this basis.
  6. In protected or statutory tenancies the landlord wholly or partly relies on case 2 under the Rent Act 1977 (suitable alternative accommodation provided or arranged by the housing authority) (see Reg (2) (2) (f)).

As above, the exemptions are limited by reference to specified grounds and as such, for example, if you have not pleaded an ASB Ground in your original claim, you will not be able to secure eviction even if there is now substantial ASB. It is possible to apply to vary a possession order to rely upon new grounds for possession (as per Manchester City Council v Finn [2002] EWCA Civ 1998) but given the court backlog this may not speed up eviction.

We believe no warrants seeking possession against ‘left in occupation’ trespassers or former licensees can be executed. Whilst Regulation 2 appears under the heading ‘Residential Tenancies (Protection from Eviction)’ we consider this has no effect – or else the reference to persons unknown trespassers would not have been needed. This view is supported by the accompanying explanatory note. Consideration could be given to peaceably evicting excluded licensees by changing locks where the licence agreement permits this, Equality Act 2010 impact assessments have been done and where it is considered safe and proportionate to do so given the pandemic.

The Welsh courts are still granting injunctions where the evidence justifies it, including exclusion orders in the most extreme of cases, so our housing team can advise on, draft pleadings or appear in such claims if so needed.

Amy Kelly is a social housing barrister and 12CP Barristers’ Head of Housing. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

If Chambers Housing Team can assist you in any housing related matter, including further advice, please contact our Clerks on 02380320320 and we will be happy to help.

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