The legislation surrounding the exercise of a warrant of possession against tenants who occupy premises under an assured shorthold tenancy is continually evolving due to Covid-19; a recent decision in the High Court has significant implications in the area of housing law, and will not have been welcomed by landlords generally.
The decision* has confirmed that any possession order based on a s21 notice alone cannot be used to enforce a warrant of possession during to the current restrictions on evictions.
The current position is that no warrants of possession can be exercised by the County Court bailiffs until at least 31 May 2021, unless the landlord satisfies a limited number of exceptions**. One of those grounds includes the fact that the tenant is in substantial rent arrears and the notice, writ or warrant relates to an order for possession made wholly or partly on Grounds 8, 10 or 11 in Schedule 2 of the Housing Act 1988 by serving a s8 notice under the Housing Act 1988 (as amended).
Landlords who have started their eviction process against a tenant by serving a s21 notice under the Housing Act 1988 and obtained a possession order on this basis will not be able to expedite any warrant for possession, even if they obtain a money judgment in those proceedings or the tenant is in substantial arrears generally. In fact they will need to join the long queue to obtain an eviction date and wait until the restrictions on evictions are lifted.
This will be frustrating to many landlords given that the notice periods under s21 and s8 can be up to six months and some may have started the eviction process long before the current regulations came into force; indeed they may have acted differently if they had known this was likely to be the case.
The current regulations remain in force until 31 May 2021, and given the fluidity of the situation it’s not clear whether the government will extend them further, or whether they might be amended. This being the case, landlords should think carefully from the outset about what type of notice they wish to rely on to recover possession, and perhaps consider serving multiple notices now to protect their position if proceedings are required at a later date.
* The Corporation of the Trinity House of Deptford Strond v Prescott and Byrne  EWHC 283 (QB)
**The Public Health (Coronavirus) (Protection from Eviction) (England) (No.2) Regulations 2021.