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Property Enforcement Update

In light of various pieces of current, albeit temporary, legislation in relation to Coronavirus and restrictions imposed on property enforcement as a direct result of the pandemic, we have summarised the current position regarding available remedy options. The following summarises that position in relation to each area of enforcement / service offering and what is or is not currently viable.

Commercial Rent Arrears Recovery (CRAR)

The Taking Control of Goods (Amendment) (Coronavirus) Regulations 2021 increased the minimum amount of net unpaid rent that must be outstanding before Commercial Rent Arrears Recovery (CRAR) may take place to an amount equivalent to at least 457 days’ rent up to the 23^rd June 2021 and an amount equivalent to at least 554 days’ rent from the 23^rd June 2021 onwards. Further, The Business Tenancies (Protection from Forfeiture Relevant Period) (Coronavirus) (England) Regulations 2021 sets the expiry for this criteria at the 30^th June 2021. Essentially this means that now, instead of the tenant needing to owe an amount equivalent to at least 7 days rent, they must now owe an amount of rent equivalent to the amount specified in relation to the dates detailed before we can proceed. This temporary legislation is currently in place until the 30^th June 2021*.

Commercial Forfeiture / Peaceable Re-Entry

If it is forfeiture / re-entry as a remedy for non-payment of rent then there is currently a moratorium in place preventing such action, The Business Tenancies (Protection from Forfeiture Relevant Period) (Coronavirus) (England) Regulations 2021 sets the expiry for this criteria at the 30^th June 2021*. However, these restrictions relate to forfeiture / re-entry as a remedy for non-payment of rent only, the right to forfeit for a breach of any covenant or condition in the lease (save in the case of non-payment of rent) remains an available option subject to Section 146 Notices being served when and where appropriate.

Residential Evictions

The Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 and also The Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021 prevent the enforcement of any residential eviction in England until the 31^st May 2021 (30^th June for Wales under slightly different legislation)*. Limited exceptions apply and are as follows, where the matter is;

• against trespassers pursuant to a claim to which rule 55.6 (service of claims against trespassers) of the Civil Procedure Rules 1998(3) applies
• wholly or partly under section 84A (absolute ground for possession for anti-social behaviour) of the Housing Act 1985(4)
• wholly or partly on Ground 2, Ground 2A or Ground 5 in Schedule 2 (grounds for possession of dwelling-houses let under secure tenancies) to the Housing Act 1985(5)
• wholly or partly on Ground 7A, Ground 14, Ground 14A or Ground 17 in Schedule 2 (grounds for possession of dwelling-houses let on assured tenancies) to the Housing Act 1988(6)
• wholly or partly under Case 2 of Schedule 15 (grounds for possession of dwelling-houses let on or subject to protected or statutory tenancies) to the Rent Act 1977(7)
• the case involves substantial rent arrears (of unpaid rent arrears outstanding is at least an amount equivalent to 6 months’ rent) and the notice, writ or warrant relates to an order for possession made wholly or partly –
  • on Ground 1 in Schedule 2 to the Housing Act 1985
  • on Ground 8, Ground 10 or Ground 11 in Schedule 2 to the Housing Act 1988(8)
  • under Case 1 of Schedule 15 to the Rent Act 1977
• writ or warrant relates to an order for possession made wholly or partly on Ground 7 in Schedule 2 to the Housing Act 1988(9) however the person attending at the dwelling-house must take reasonable steps to satisfy themselves that the dwelling-house is unoccupied before—
  • delivering a notice of eviction; or
  • executing a writ or warrant of possession

Trespasser Evictions

Business as usual regardless of whether the landlord is exercising their rights under Common Law or using a Warrant / Writ of Possession.

Process Serving

Business as usual, but with Covid secure guidelines being adhered to.

Security Provisions

Business as usual, but with Covid secure guidelines being adhered to where physically possible.

IMPORTANT NOTE

Dates marked above with an (*) are subject to change / amended legislation as the Government sees fit.

Moving Forwards

It is currently unknown whether the temporary legislation will be further extended beyond the given dates, or if we will quite quickly return to the normal legislation pre-Coronavirus. I think the reality will be somewhere in the middle, a scaled and gradual reduction in restrictions over a period of time (months not years, hopefully) back to where we can function as we did before.

We are already seeing an upturn in instructions on residential enforcement matters under the 6 months’ arrears exemption and increasing numbers of trespasser encampments which are moving on. It very much seems that the world has started to spin again and this will, we think, keep gathering momentum. Whilst it is impossible to predict the future in such dynamic and unpredictable times, it seems that we are firmly marching down the road towards more conventional property enforcement.

Please do not hesitate to contact me for assistance on any property related matter: