Realistically, we already know that courts, when they reopen will priorities certain applications over others, for example, variation orders and requests to set aside existing possession claims.
After that we expect the courts to deal with the most serious possession claims first, such as Anti-social behaviour, then rent arrears claims and final S21 claims as these need no fault to be proved.
It is possible that prior to 25th June the court system or the notice period of 3 months could be extended.
But what we do know is that Robert Jenrick has announce a Rent arrears Pre-Action Protocol will be issued before the courts reopen.
So, what does a pre-action protocol mean for landlords, at present we have not seen a draft of this new measure, nor do we know if this will be legally binding or just a “good practice guide”
So let’s look at the possibilities the protocol could bring.
The social housing sector has had a Pre-action protocol since 2015 and forms part of the Civil Procedure Rules and sets out the Court’s expectation of the parties’ conduct before a claim is issued
It is expected that the protocol that will be issued for Private landlords will follow a similar set up and will set out the process a Landord will need to follow before a court will entertain an application for possession.
The Social Landlords protocol is separated into 3 parts:
• Action before notice is served
• Action before court application
• Action before court hearing
In all of these sections the responsibility is on the landlord to prove that have met and abused by the protocol before executing an action.
For example, before a landlord can issue a S8 notice for rent arrears, they must demonstrate that they have engaged with the tenant at the earliest opportunity, provided a rent statement every quarter, discussed the tenants financial circumstances, explored their eligibility to claim benefits or grants and discussed repayment options.
Only after all this has been satisfied can the landlord confidently serve a S8 notice.
After notice has been served this is not the end of the landlords duties, they must now prove ongoing communication with the tenant and evidence that they have supported the tenant to make any benefit claims and signposted them to independent advice organisations such as Citizens advice.
The courts also in the case of social landlords expect both parties to engage in Alternative Dispute Resolution (ADR) before a Landlord submits an application for possession to the courts.
For social landlords, failure to meet these requirements will lead to the court issuing them with a claim to pay all costs, the possession hearing can be adjourned and in some cases the judge will just strike out the claim, leaving the landlords to have to start the process from scratch.
We do not know how detailed the Private Sector Protocol will be and it is very unlikely to be retrospective.
But I would recommend landlords start to follow some of the process of the Social Landord pre-Action protocol as general good practice, to ensure that when the protocol is published in the next few weeks, you are already ahead of the game.
View a copy of the Social Landord Pre-Action protocol here.
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-possession-claims-by-social-landlords
