Further details have emerged of how courts will deal with housing possession cases when they resume next week. Possession proceedings have been suspended since March to protect private and social renters, and those with mortgages and licences covered by the Protection from Eviction Act 1977 during the Covid-19 crisis.

Simon Mullings, a housing solicitor at Edwards Duthie Shamash, said nothing much is likely to happen on Monday. Court staff will begin looking at the backlog of cases and new ones coming through, and list them subject to rules and directions currently being drawn up.

Mullings told the Young Lawyers Making Change festival this week that landlords with cases in the backlog will have to write to the court with a reactivation notice. Their case could eventually be struck out if they don’t.

Some cases will have gone beyond a first hearing prior to the suspension while some will need to be listed for the first time. Mullings said: ‘In either case the landlord will have to comply with new direction requirements in which they are going to have to set out their case for possession in more detail than previously.’

Landlords will have to flag up any Covid-related issues, which tenants will also be able to do. New possession cases will be listed for a review date. This will enable tenants to get advice, likely by phone, from a court duty adviser in advance of any court hearing.

Mullings said there was now a ‘real imperative’ to reduce the number of cases going through the court system.

However, he warned that tenants could still be evicted at the whim of landlords. At present, tenants can be evicted under section 21 of the Housing Act 1988, which requires no specific reason for possession, and under mandatory ground 8 of section 8 of the 1988 act, if correct procedures have been followed.

The government is currently working with the judiciary to widen the pre-action protocol on possession proceedings to include private renters and strengthen its remit. Housing secretary Robert Jenrick told the Commons housing, communities and local government committee that the protocol ‘puts a duty upon the landlord to work in good faith with their tenant to see if there is a sensible way in which you can manage the situation before embarking upon possession proceedings’.

However, the committee said it was ‘wary of the government reliance on conversations between landlords and tenants which have little legal force’. It has urged the government to bring forward legislation to amend the 1985 and 1988 housing acts to allow judges to use discretion where a tenant is in rent arrears due to the pandemic. Discretion could include considering whether a pre-action protocol has been complied with. The government should also accelerate its plans to introduce the Renters’ Reform Bill and abolish ‘no fault evictions’ under section 21 of the 1988 act within the next 12 months.

As long as section 21 remained on the statute book, ‘it will remain an option for landlords’, the committee warned.


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