Amy Kelly considers the latest extension of the prohibition on enforcement of some possession orders in England and Wales.
English ban extended to at least 31 March 2021
We said last month that we thought it was unlikely that the English halt on evictions would actually end on the 21 February 2021 and this weekend the government announced that date would be extended until the end of March 2021, which will bring it in line with the current Welsh ban.
As yet we have not seen the new regulations and the current regulations expire next Sunday 21 February 2021 so we will keep our eyes peeled to see if there are any surprises or changes to the current exemptions.
Possession order must actually be made on exempt ground for exemption to apply
We also said:
“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.”
And on 11 February the High Court held exactly that in The Master Wardens and Assistants of the Guild Fraternity of the Brotherhood of the Most Glorious and Undivided Trinity and St Clement in the Parish Of Deptford Strond Commonly Called The Corporation of The Trinity House of Deptford Strond V Dequincy Prescott And Clodagh Byrne  EWHC 283 (QB). Put more succinctly than the Claimant’s name, the possession order did not fall within the exemptions even with arrears of £70k and a money judgment, because the basis of the claim was an expired s21 notice under the accelerated possession procedure (an application to amend to include a ground 8 claim not being pursued at court in pre pandemic January 2020 as Counsel lacked a crystal ball). The court found that even if there was discrimination and interference with the Landlord’s A1P1 property law rights, any discrimination was justified and thus that the January 2021 Regulations were not "not compliant with Convention Rights".
Does exemption apply – more applications?
If you are obtaining a possession order on an exempt ground, you should ask the court to record as such on the face of the order and that the possession claim is ‘suitable for enforcement’.
If you already have a possession order which is on an exempt ground but does not expressly record that it is “an exempt ground” or “suitable for enforcement” the Government Guidance Understanding the possession action process: A guide for private landlords in England and Wales - GOV.UK (www.gov.uk) suggests those made on an exempt ground require a non-fee paying N244 application to court, for the court to determine whether the possession order was indeed made on an exempt ground and is thus suitable for enforcement. We advise that this application should request that the court:
“declare itself satisfied of the following matter as set out at Regulation 2 of The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (legislation.gov.uk)], namely that the possession order made on [date] falls within the exemptions at Regulation 2 [add subparagraphs] being a possession order made on [set out ground/reason why exempt]
The landlord must provide the defendant with a copy of the application and the application should be sent to the court that made the original possession order.
The Guidance suggests, as if the courts are not busy enough, that this should be listed for an on notice hearing, rather than a paper exercise.
The Guidance suggests this will only be required for possession orders pre 17.11.20, as orders post this date will be suitably marked (save for those made on rent arrears grounds between 17.11.20 and 11.01.21 where 9 months’ rent arrears before 23.03.20 was the gateway to enforcement rather than the 6 months’ rent now required).
If a post 17.11.20 orders is not appropriately marked and there is any difficulty obtaining a warrant, potentially a landlord could ask in writing that a post 17.11.20 order be amended under the slip rule as this guidance suggests the orders should be/have been so marked thus eliminating the need for a formal application.
We have heard of at least one court requiring an application under the guidance for a pre 17.11.20 possession order to be so marked, whereas in some other courts, the court has allowed warrants to be processed on a written request from a claimant explaining why the case is exempt from the halt on evictions.
Under CPR Part 83.3 (3) PART 83 - WRITS AND WARRANTS - GENERAL PROVISIONS (justice.gov.uk) a warrant of possession is only valid for 12 months. Given the delay on evictions some landlords may have warrants that are on the cusp of expiry and yet are waiting to be executed, but for acquiring a bailiff appointment. We understand that each court and bailiff has a priority list, and it is likely a landlord will lose their place in the queue if the warrant expires, even if they immediately reapply for a fresh warrant.
We have heard that at least one court on the Midland Circuit has been proactive and has automatically extended all warrants effected by the pandemic for a further 12 months under the power contained in CPR Pt 83.3 (4).
However, at least one other court elsewhere has required a landlord to make a fee-paying application under N244 to extend a particular warrant to ensure it does not expire before the bailiff can provide an appointment.
In order to keep a place in the queue, warrants likely to expire before execution should be extended by 12 months. Under CPR Pt 83.3 (9) irrespective of whether it has been extended, the priority of a relevant warrant will be determined by reference to the date on which it was originally issued.
If you want to retain priority, whether your warrant is on an exempt basis or otherwise, and you have outstanding warrants that are on the cusp of expiry, it may be worth writing to the relevant court to ask if the Presiding Civil Judge will consider extending all warrants by a further 12 months under the powers granted by CPR Pt 83.3 (4). Alternatively, you will have to make a fee-paying application, before expiry, to extend any such warrants.