Lockdown 3.0: no exception, no eviction

26 Jan 2021

In light of the third national lockdown announced on 4 January 2021 and pressure from both local and national politicians, as well as many charities, the Government has introduced new Regulations to extend the suspension of residential evictions until 21 February 2021.
The suspension of residential evictions was first put on a statutory footing by The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 (“the Regulations”) back in November 2020, which prohibited Bailiffs from sending out notices of eviction. The Regulations provided for a general suspension of the execution of a warrant or writ of possession in relation to residential properties, save in a limited number of exceptional circumstances, specifically where the possession order had been made on the basis of:-
  • A claim against trespassers;
  • Wholly or partly under the absolute ground for possession due to anti-social behaviour;
  • Wholly or partly on possession grounds relating to anti-social behaviour, domestic violence, or misrepresentation to obtain the tenancy; or
  • Substantial rent arrears had accrued (the amount specified under the Regulations was a sum equivalent to at least 9 months’ rent at the date of the possession order, and any arrears that had accrued post 23 March 2020Evictions banned during national emergency could not be considered.) 
Bailiffs were not allowed to enforce possession orders between 11 December 2020 and 11 January 2021, a period termed “the Winter Truce”, except in the most egregious of cases when an exception applied. 

So we might have expected to be seeing evictions re-commence this week, but the extension brought in by The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 (“the New Regulations”) pushes that likelihood back by another month. 
At first glance, not much has changed with both the ban on residential evictions and the exceptions in which Bailiffs can enforce possession orders remaining.  However there is a notable difference in the ‘substantial rent arrears’ exception, with the New Regulations introducing a new definition to ‘substantial rent arrears’, being:-
  • “a case involves substantial rent arrears if the amount of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent.” 

This is a change from 9 months’ to 6 months’ arrears. Most notably, there is no stipulation as to when these arrears have to have been accrued, ie. either as at the date of the possession order or prior to 23 March 2020. The implication therefore, is that a landlord may make an application to the Court to enforce the possession order by way of a warrant if they can evidence that 6 months’ rent arrears are owing at the point of application. This means that arrears arising from the impact of the Coronavirus pandemic would be counted.
It is yet to be seen how the Courts will deal with these applications. Given the uncertainty that continues to surround the Covid-19 pandemic and when lockdown restrictions may be relaxed, it would be prudent to keep a watch for further delays to the resumption of residential evictions past 21 February 2021. If there are no murmurings of the ban being extended for a further time, landlords with frozen evictions would be advised to write to the relevant Bailiff office on 22 February 2021 requesting a new eviction appointment as soon as possible, in order to mitigate any further delay in recovering vacant possession.
If you are affected by the new Regulations and need advice, please get in touch with our specialist Real Estate Dispute Resolution team.

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