During the early stages of the Coronavirus pandemic reaching the UK, the Government implemented emergency measures to protect the wellbeing of tenants. This emergency legislation (the Coronavirus Act 2020) extended the period of notice that landlords were obliged to give tenants before seeking an order for possession to 3 months, applying to all notices served between 26th March 2020 and 30th September 2020 and to almost all types of tenancy.
The Government also introduced measures to put a hold on all possession proceedings. This was extended twice but is currently due to expire on 30th September. This applied to all applications for possession orders, appeals of possession orders, or applications to enforce possession orders, i.e. through a bailiff warrant. Therefore, if your landlord applied for possession before 27th March 2020 the case will be put on hold regardless of what stage it is at, and no new possession claims will have been processed between 27th March 2020 and 30th September 2020.
Our housing solicitors are very concerned that after 30th September 2020 we will witness an explosion of evictions at what is still a very uncertain time. We have put together a short guide for private sector tenants who have a possession claim on hold or whose landlord is threatening to bring a possession claim after 30th September 2020.
If you rent your home from a local authority or housing association, please click here to see our advice for social tenants.
How to stop your landlord making a possession claim
Your landlord can choose to abandon or settle a possession claim at any stage of the process. By working cooperatively with your landlord, you may be able to persuade them not to continue any action against you. The following options should be explored:
Communication with your landlord
It is important to ensure that each and every time you fall into financial difficulties you immediately notify your landlord or housing officer. If you are able to put your concerns in writing, or by telephone make sure you keep a detailed diary of all the contact that you have made to try and resolve the issue. Communicating with your landlord makes it much more likely that they will not seek possession and keeping a paper trail and diary of all your actions may help you if the matter comes to court.
Seek financial assistance
You should make sure that you apply for any benefits you may be entitled to and chase up any outstanding benefit applications. You could also apply for a discretionary housing payment from the Local Authority. If you are not eligible for any assistance, it may be worth asking family or friends for assistance. Make sure to always keep your landlord informed, so that they are aware that you’re seeking financial assistance.
Propose a repayment plan
Landlords will often be happy to agree to a reasonable payment plan to ensure that they receive the money they’re owed.
Try to work with your landlord to agree to a plan that works for both of you. Even if they do not agree to this, it is sensible to confirm the plan in writing and stick to it. This can also be helpful if the matter comes to court.
Seek legal assistance at an early stage
You should seek assistance from a specialist housing solicitor, who will be able to advise you on your rights and the best way forward. They may be able to negotiate with your landlord on your behalf and will do everything they can to ensure that you’re protected and will spot other potential defences that could help you.
Defences to possession claims for private tenants
If the matter does come to Court and cannot be resolved through discussions with the landlord, you may well still have a defence.
Private landlords can bring claims under the discretionary procedure in which case all the points above will apply. More often than not though they use the “s.21 procedure” which only requires them to serve a notice after which they will be automatically entitled to possession. This is a draconian tool available for a landlord to seek the removal of a tenant “just because”. The Government have already agreed to abolish this way of seeking possession but despite calls to bring this ban forward due to Covid-19, this has not yet happened.
There are however defences to a s.21 claim:
- The landlord will have to have served the correct notice with the correct time frame and in the correct format. If they have failed to do so this may provide a full defence to the claim.
- The landlord all must comply with all the procedural requirements including regulations relating to deposits, licensing requirements, tenant fees, compliance and service of appropriate documentation including How to Rent Guide, Gas Safety Certificate (GSC) and Energy Performance Certificates. Failure to comply may provide a potential to defend the claim for possession.
Is Legal Aid available to defend possession claims?
Defences to s.21 claims can be very technical and we would recommend you always seek legal advice if possible
It is a common misconception that legal aid is no longer available to defend possession cases. If you are financially eligible, legal aid is almost always available, even at any early stage when your landlord has only threatened possession action. This is because facing the loss of your home is extremely serious and legal advice is often essential.
We would therefore urge anyone who is concerned about their landlord taking possession of their property to seek advice from a housing solicitor at the earliest possible opportunity.
If you’re seeking legal advice relating to eviction please call our highly experienced Housing & Property experts on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back or get in touch online.