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Further Information on the Suspension of Enforcement of Possession (in most cases) Until 11th January 2021

Posted on November 18th, 2020

The Government has issued a statutory instrument under emergency procedures to prevent, except in specified circumstances, bailiffs and High Court Enforcement Officers (HCEOs) attending at a dwelling house to execute a writ or warrant of possession, execute a writ or warrant of restitution or deliver a notice of eviction.

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 were laid yesterday just days after the Ministry of Justice was threatened with a judicial review challenge over an ongoing refusal by bailiffs and HCEOs to enforce warrants and writs. https://www.legislation.gov.uk/uksi/2020/1290/contents/made

The regulations came into force 17th November and apply to England.

The specified circumstances in the regulations allowing attendance are “where the court is satisfied that the claim is against trespassers who are persons unknown or where it was made wholly or partly on the grounds of anti-social behaviour, nuisance, false statements, substantial rent arrears that predate 23rd March 2020 or, in cases where the person attending is satisfied that the dwelling house is unoccupied at the time of attendance, death of the occupant”.

A case is said to involve substantial rent arrears “if the amount of unpaid rent arrears outstanding at the date on which the order for possession is granted is at least an amount equivalent to 9 months’ rent”. Any unpaid rent arrears accrued after 23rd March 2020 must be disregarded for this purpose.

The regulations also prevent use of the procedure set out in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (c. 15) to take control of goods located inside a dwelling house.

The Explanatory Memorandum acknowledged that since 20 September, the Lord Chancellor had asked bailiffs not to enforce evictions in areas subject to local lockdown regulations which place restrictions on gatherings in residential properties. Following the introduction of the Health Protection (Coronavirus, Local Covid-19 Alert Level) Regulations 2020, bailiffs were asked not to enforce evictions in areas designated as Local Alert Level High (2) or Local Alert Level Very High (3).

The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 (“the national health protection regulations”) introduced a national lockdown in England from 5th November until 2nd December 2020.

The Secretary of State for Justice issued The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 in exercise of the powers conferred by sections 45C(1), (2), (3)(c) and 45P of the Public Health (Control of Disease) Act 1984(1).

“These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England,” the statutory instrument says.

“The Secretary of State considers that the restrictions and requirements imposed by these Regulations are proportionate to what they seek to achieve, which is a public health response to that threat.

The Explanatory Memorandum states that the aim is to ensure protection for tenants from being evicted both during the period while the national health protection regulations are in force and the subsequent mid-winter holiday period.

“During this time, public services and businesses may be closed or running at a reduced capacity and securing alternative accommodation may present increased practical difficulties; the Government therefore believes it is right to prevent the enforcement of evictions, in order to reduce the risk of virus transmission and avoid placing additional burdens on the NHS and hindering local authorities in their public health response at a time when pressure on services is most acute.”

Regulation 2 – Residential Tenancies (Protection from Eviction) – expires on 11 January 2021. Regulation 3 – Taking Control of Goods – expires on expiry of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (S.I. 2020/1200).

Article abridged from ‘Local Government Lawyer’

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