Another update has been released addressing how possession actions can be handled during the current moratorium on possession claims with an amendment to Practice Direction 51Z:
There are two key elements of these amendments:
• The first of these relates to case directions agreed between the parties involved in ongoing litigation. The court will allow for applications made by consent relating to ongoing directions. This may be something worth considering if you are involved with and you are heading towards for example a case management conference (when both sides, the lawyers and the judge meet to talk about how the case should progress leading towards trial). Once the moratorium has finished there will be an influx of cases all needing to be handled at the same time. Given the delays often experienced before the current moratorium, the potential delays afterwards do not bear thinking about. If anything can be done to agree some of the details with ongoing litigation, it makes sense to at least explore this as an option rather than waiting for the court to assist at a later date.
• The second addresses notices that had previously been served. As any regular readers of this blog will remember, the notice period for service of new section 8 and section 21 notices has increased to 3 months. However, this leaves the question of notices that had been served before these changes. As long as the notices were served correctly at the time, they should remain valid now, however you would be limited in relying on the notice should the tenant not have vacated. The initial 3 month suspension of claims (which may still be extended at a later date) could have however, inadvertently invalidated any such notice. The issue being that the Deregulation Act gives section 21 notices a 6 month shelf life. This means if a claim to court is not submitted within 6 months of issue of the notice, the landlord would no longer be entitled to rely on that notice. The 3 months where no new claim can be made would catch a number of these notices and mean that the 6 month deadline may be missed.
With this in mind, the updated practice directions now confirms that the stay does not prohibit new claims being made and so new claims can be submitted to court for example to protect the validity of any notice that is about to fall foul 6 month restriction above where you know that court action will be required. The claim should be processed by the court but no further action will be taken until the stay ends. It is worth noting that once the claims are processed, the claim is live and so if later the tenant vacates or agreement reached with the tenant and so court proceedings are actually not required, the costs will have already been incurred and are not recoverable.
In our view, this should only really be used as a last resort though. By issuing a claim now, in addition to the costs being incurred before knowing how and when any action will be taken or even if it would be needed at that later date, there is also the distinct possibility that paperwork could be lost by the court particularly given the skeleton staff they are operating with in dealing with any such application and the processing of the claims.
Published 22 April 2020