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Legal analysis – is the eviction ban’s remit too wide to be workable?

Tim Reid

Link to Lettings feature


Link to Lettings feature

UK COVID-19: Residential possession proceedings during lockdown: is the new practice direction too wide to work? Tim Reid, Senior Associate, Hogan Lovells, comments.

The UK government’s response to the COVID-19 outbreak has included various steps intended to relieve pressure on residential property tenants, whose livelihoods and income might have been seriously impacted by the current lockdown. Those steps have included the extension of statutory notice periods for landlords who want to terminate residential tenancies, and extra time being given to tenants who find themselves in breach of their tenancy agreements (for example, because they are unable to pay their rent).

The effect of the direction is wide-ranging, it does not distinguish between tenants overstaying and squatters who broke in.

Those measures were set out in the Coronavirus Act 2020. At the same time, a new practice direction “51Z” was added to the Civil Procedure Rules (the set of procedural rules that governs the processes for civil proceedings through the court system) staying for 90 days all existing court proceedings for possession orders and warrants of possession. Because an owner cannot generally recover possession of residential property without a possession order, this means that any attempt by an owner to recover possession of property from an occupier who is unwilling to leave has been put on ice for 90 days (or more if, as expected, the 90 day period is extended). The effect of the new practice direction is wide ranging, and it does not appear to distinguish between (for example) tenants who have simply outstayed their welcome, and squatters who have entered property unlawfully.

Court challenges

Within a month of the new practice direction coming into effect, it has already been challenged in court. The case of Arkin v Marshall is a claim brought before the current lockdown, by a lender seeking to enforce its rights as a mortgagee of property. The proceedings are possession proceedings caught by the new practice direction 51Z . The applicant, apparently eager to press on without being delayed, asked the court to determine whether the practice direction has to be complied with (so staying the proceedings for 90 days) or whether the court can disregard the practice direction and require the parties to comply with upcoming directions for exchange of witness statements and expert reports, pushing the case towards trial. The judge decided in the first instance hearing that the 90 day stay had to be complied with, without exception.

Given the purpose of this particular practice direction, as part of a suite of measures intended to slow down or halt the residential possession process during the COVID-19 lockdown, one might expect compliance to be strictly enforced, but with consent having been given for a leap-frog appeal straight to the Court of Appeal, we might soon see a Court of Appeal decision about whether judges have a discretion to ignore this and other Civil Procedure practice directions. RIGHT TO RENT Status checks are to remain following Court of Appeal decision: Sarah Harrop, Partner, Employment & Immigration, at London Addleshaw Goddard LLP, comments.

Right to Rent

Link to Lettings featureStatus checks are to remain following Court of Appeal decision: Sarah Harrop, Partner, Employment & Immigration, at London Addleshaw Goddard LLP, comments.

The Court of Appeal in R (on the application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department) has upheld the legality of the Right to Rent Scheme (Scheme) that obliges landlords to check the immigration status of tenants. This means that rent checks must continue to be carried out to confirm that prospective tenants have a right to rent before a tenancy is entered into.

The Court of Appeal decision confirms that right to rent checks are not unlawful under the Human Rights Act, reversing a decision of the High Court. The Joint Council for the Welfare of Immigrants argued in the High Court case that the Scheme was unlawful as it encouraged “systematic discrimination” against foreign nationals, British citizens without passports and British black and minority ethnic tenants on grounds of race and nationality and was thus incompatible with the European Convention on Human Rights;

The Court of Appeal held that the Scheme was a “proportionate means of achieving its legitimate objective”, and was justified. However its finding that the Scheme did, to an extent, increase the risk of discrimination, is likely to have significant political repercussions and may lead to more calls for its abolition.

The Right to Rent

The right to rent requirements were brought into force in England only in February 2016 under the Immigration Act 2014. The Scheme has not yet been implemented in Scotland, Wales or Northern Ireland.

The Scheme aims to prevent illegal immigrants from accessing the private rental sector and unscrupulous landlords exploiting vulnerable migrants, sometimes in very poor conditions. The right to rent Code of Practice sets out what landlords are expected to do.

July 15, 2020

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