Are We Really Ready To Be Possessed?

The period of enforced suspended animation brought about by the pandemic is coming to an end and for the majority there is a sigh of relief and a strong desire to return to normality.

However, having been enveloped in a state-controlled protective cocoon for months, the reality is that the Piper’s very large bill now needs be paid and the wake-up call is going to be harsh. 

With the furlough scheme being run down redundancies are being announced daily and there will be further social and economic repercussions with the government announcing that evictions and repossessions are set to begin again on the 23 August 2020.

Sadly, for some the stark reality is that not only will they be losing their jobs but their homes as well.

The government is keen to reactivate possession proceedings stayed by the pandemic and has introduced a new Practice Direction 55C coming into force on 23 August 2020 until 28 March 2021.

In addition, it has introduced ‘Nightingale Courts’ located around the country to expedite dealing with the backlog of cases.

For those cases that were stayed by the pandemic before 3 August 2020 one of the parties, likely to be the landlord, will need to file at court and serve on the other party, likely to be the tenant, a reactivation notice which will provide the court with information required to manage the case. 

There is no prescribed form of notice so it can be by letter, but it must inform the court whether the case is to be:

• listed; or
• relisted; or
• heard; or 
• referred; and 
• must clearly set out a statement of knowledge as to the effect the pandemic has had on the defendant (the tenant) and their dependents. If the landlord has no such information then this will need to confirmed to the court; and 
• if the claim is for rent arrears the notice must also include an updated rent account for the previous two years. This latter requirement does not apply for possession claims based on other grounds. 

The reactivation notice will also need to be filed and served where case management directions were made before 23 August 2020 or a trial date was set prior to the to 27 March 2020. 

Again, failure to file and serve the notice will result in the case being stayed indefinitely and any set trial dates will be vacated by the court.

If a reactivation notice is not filed by 4pm on 29 January 2021 then the claim will be automatically stayed and an application to the court will be required to lift the stay. 

For any possession claim brought on or after 3 August 2020 the landlord must inform the court within the claim form of any knowledge they have as to the effect the pandemic has had on the tenant and their dependants.

In addition, at any forthcoming hearing both parties are required to bring two copies of a notice which sets out:

• what knowledge they have in relation to the effects of the pandemic on the tenant and their dependants; 
• in claims where the Pre-Action Protocol for Possession Claims by Social Landlords is applicable, to confirm whether they have complied with the protocol and how they have done so. 

It is noted that there is one common thread running through these new temporary rules and that is the effect the pandemic has had on the tenant and the tenant’s dependents. This implies that the courts will, at the very least, consider the pandemic’s impact on the tenant’s current circumstances. How much discretion the court will have in taking that into account when making its final order is another matter.

We have all been involved in the biggest worldwide tragedy since World War II and there is a realisation that it will take years to recover and move on.

As a global community we have been made fully aware of the social responsibilities that we owe each other, to our communities and to society generally. 

It is hoped that we understand and acknowledge the need to protect those who have fallen, or will fall, on hard times as a result of the pandemic through no fault of their own.

Ideally, the timing by government in implementing recovery policies, whilst at the same time recognising the social consequences, will play a key role in that process.