Under the coronavirus Act 2020, the UK government placed a ban on evictions until June, and this was further extended to at least 23rd August 2020.
The eviction ban has caused misery for many landlords. Some will end up losing their property due to their inability to pay the monthly mortgage as a direct consequence of non-paying tenants.
The mortgage holiday announced early into the Coronavirus pandemic by the Chancellor Rishi Sunak is no real help for some landlords. It is deferred mortgage payments landlords still need to pay later.
The mortgage “holiday” to some tenants understanding has been that landlords do not have to pay this back. For this reason, some tenants believe they don’t need to pay their rent to the landlord either.
Many landlords ringing the BLA helpline have reported their tenants were under the illusion landlords did not need to pay the mortgage during the Coronavirus pandemic and reasoned they, in turn, should not pay rent too.
There are some tenants who can’t pay the rent, and on the other hand, you have those who simply don’t want to pay.
Some landlords will go bankrupt if the eviction process is not changed
By way of example: Landlords with rent arrears say in November 2019 who instigated possession proceedings under section 21 notice may be amongst the most affected by the ban on the eviction legislation. Some landlords may go bankrupt and will not see the end of the eviction process due to lenders re-possessing their security.
Most landlords although the tenant has rent arrears opt to use the section 21 route to gain possession rather than the section 8 route.
The reason to use the section 21 route is often looked at as an easier non-contentious route.
Section 21 route is no longer a non-contentious route for possession for those wishing to evict a tenant.
In the last few years, the Government has introduced a raft of new legislation. If a landlord did not comply with the legislation, they face two penalties:
1 = Financial penalty.
2 = Eviction Notice section 21 will be deemed invalid due to non-compliance of the legislation.
The current eviction process will lead to landlords going bankrupt
Even when a landlord does comply, a tenant can in some cases defend a possession claim by wrongly claiming the landlord did not give a particular document, and that is sufficient to kick the eviction process in the long grass.
All possession claims are initially generally listed to be heard in 10 minutes, as most cases are not defended. So the case can be determined in the 10 minutes.
Those that are defended, the court has no time to deal with them at the initial hearing. Directions are given to progress the claim, and generally, you would be looking for a trial to take place in 6 months from the date of the directions.
It is worth remembering under the current eviction (Prior to Covid-19) process, it has already taken four months to arrive at the initial court hearing.
From the initial court hearing, some cases may be dealt in 3 to 4 months; some cases can take up to 12 months.
Some tenants make a mockery of our justice system
Defended possession claim with an element of disrepair with a counterclaim can easily take 12 months or more from the initial court hearing. To rub salt on the wound, disrepair cases can cost a landlord up to £10,000 of which very rarely is this recovered from a tenant.
When eventually a possession order is granted to a landlord after a long haul through the slow wheel of the eviction process, then what, is it the end?
In some cases, at the last leg of the possession process, a tenant can make an application to suspend a possession order to frustrate an owner’s right to possession of their property. You would think the court would look at the application to see if it had any merit before accepting the application and listing it for a hearing.
The fact is it does not matter what the tenant has cited as the grounds for the application for the possession claim to be suspended.
You could put in “I don’t want to leave”. No one will look at the application save for the judge on the day the application notice is heard.
Meanwhile, the eviction date the bailiff has set is vacated, the application is heard in say five weeks. Upon the tenant’s application rejected the landlord must start the whole process of instructed the bailiff again to carry out the eviction. Which, yes – you go back of the queue, and it can take anything from 6 weeks to 12 weeks before the bailiff will carry out the eviction.
I had one case where the tenant made three applications, two on the same grounds as before. As stated above, the court staff did not even look at the application to see if the application had any merit, they are listed automatically, and the eviction date is usually vacated.
The application to suspend the eviction are almost always made not made in the 1st week, or 2nd or the 6th week from the time the tenant receives the date of the eviction.
Most applications to suspend the evictions are made a few days before the eviction; some are made just the day before the eviction. This almost ensures the court will not be able to deal with the application before the eviction, so the eviction date is vacated.
Some tenants know the law better than those representing them; they most definitely know how to play the system.
The Government protects rogue tenants
If the tenant is evicted, and the landlord has recovered none of the rent arrears or the legal cost from the tenant, which is 90%+ the case. You would be forgiven for thinking you at least have a County court judgment (CCJ) against your tenant. Wrong! CCJ is not registered against.
In the age of data-led technology and analysis, the Government does not collate or chooses not to collate data of how many tenants fail to pay a debt owing to a landlord after a judgment in favour of the landlord.
Our justice system, when it comes to the rights of a landlord, it offers little or no comfort to landlords. This is sadly with intent and not a matter of justice; it is a matter of politics.
My words may seem harsh or even cutting to some, not so when you see the injustices; I see each day.
How is it you can miss paying your mobile phone bill it shows up on your credit history, but miss paying your rent for 12 months and it is not recorded with any of the credit agencies? I will not hold my breath waiting for an answer.
The situation gets worse, at least for landlords. Most people do not know, but when issuing court proceeding against a tenant, the judgment obtained through the courts are NOT registered as a county court judgement.
One may miss paying your phone bill for a month, and this is registered on your credit file, not paying rent is ok, even if the landlord sues the tenant, no CCJ will be registered against the tenant.
Its wrong to steal groceries from a store for £50, and if you did (we suggest you don’t steal), you would get arrested, on the other hand, steal from a landlord by not paying rent for several months the landlord has the legal system stacked heavily against them.
Mr Sasha Charles, the CEO of Landlord Advice UK one of the national leading tenant eviction companies in the UK, wrote an article on this subject some time ago, and he said:
“Although many CCJ’s is registered with the Registry Trust Ltd, certain judgements are not which means there are many debtors who can pass credit checks without their CCJ showing.
Under the Register of Judgements, Orders and Fines Regulations 2005 a CCJ’s obtained through possession proceedings will NOT be registered with The Registry Trust Ltd, the consequence is that when carrying out credit checks on prospective tenants you cannot be certain if the report is accurate where previous CCJ’s are concerned.
The Register of Judgements Orders and Fines Regulations 2005 (the new Regulations) consolidate the Register of County Court Judgements Regulations 1985 (SI 1985 No. 1807 as amended by 1990/491, 1990/768, 1991/1815, 1993/710 and 1993/2173) and the Register of Fines Regulations 2003 (SI 2003 No.3184). The new Regulations also add some new provisions. He said.
COVID-19 and court cutbacks disastrous mix for some landlord’s survival
The time it takes for a landlord to obtain possession even before COVID-19 is to put it frankly a joke!
If you have any doubt regarding my comments, I invite anyone to search on Google any one of the county courts and on the right-hand side under business listing, read the feedback from the public.
With severe cutbacks to the ministry of justice budget, closure of many county courts, other courts were trying their best to deal with the extra work and the backlog.
With COVID-19 and the eviction ban what measures have been introduced to deal with possession proceedings backlog?
No Nightingale scenario here, only Robin Hood
When the ban on eviction eventually is lifted, nothing to best of my knowledge has been put in place to ensure possession claims can be expedited.
Indeed, the Government apparatus has announced Nightingale courts to tackle the backlog of cases. Landlords will gain little comfort from this as the Nightingale courts will deal with Criminal matters and possession proceedings are likely to be at the bottom as a list of priority.
If our Government has the will and the desire to alleviate the burden on our courts and the financial pain where landlords will or be close to losing their investment, it can be done ever so easily.
I invite landlords and tenant lobby groups to write to our housing minister Mr Rober Jenrick, Mr Boris Johnson, and the Chancellor Rishi Sunak to make changes the way local government deal with homeless applications.
Small, inexpensive, immediate changes should be made now
Let me explain:
Most possession claims issued through the county court are under section 21 route.
When a landlord initially serves an eviction notice to say they want their property back. The tenant, in turn, in some cases will go to the council to seek help with housing.
All councils give the following advice to the tenants: “Stay put, do not leave, if you leave, you will be intentionally homeless under the Act. If you want our help, stay put.
The landlord cannot evict you without a possession order”.
When a court does issue a possession order, and a tenant goes to the council again. The council will then again advise the tenant to stay put and let the landlord get a bailiff order.
The council advise the tenant to bring the bailiff order once received and will help the tenant on the day of the eviction or the day before the eviction.
When you have a family with young children, bailiffs turn up to evict; it is a traumatic experience for the tenant.
It is a humiliating stressful experience more so for the tenant than the landlord.
Why does the local Government insist on a bailiff order once a court has granted a possession order?
If the central Government stepped in and removed this unnecessary process where local Government insist on a bailiff to carry out a physical eviction, it would result in:
- Removing the humiliating experience of families been turfed out of their homes by bailiffs.
- Removing the additional expense for the landlord & tenants
- The potential rent loss of 3 months at the last leg of the eviction procedure would be removed. This alone may mean some landlords will not have their properties being repossessed due to non-paying tenants.
- Ease the pressure from the county court bailiffs who are currently struggling to cope.
- Ease the workload for the courts who were struggling with workload even prior to COVID-19.
Covid-19 – How long does it take to evict a tenant?
The timeline below is based on a claim that is not defended and goes smoothly, meaning the judge has not made any requisitions on the application for possession.
We have shown a timeline from November 2019 to include those cases already issued and stuck in the wheels of our justice system.
Let us have a look at the likely the timeline before a landlord could expect possession:
- Section 21 notice served 1st November 2019
- Section 21 notice expires end of December 2019
- Landlord issues possession proceedings 15th January 2020
- Expected possession order date 20th March – no possession order issued due to the ban on the eviction.
- Eviction ban lifted (25th August) court expected to issue possession (if undefended) about 15th October 2020.
- Possession order time for the tenant to vacate expires 29th October 2020.
- Bailiffs instructed 5th November 2020
- Bailiffs minimum of three months to carry out eviction – 28th January 2021
There is usually a lag between say a notice expiring and court action when a notice expires, and a landlord will explore other avenues and will try to speak to the tenant. In some cases, promises are made by a tenant to pay rent arrears, and this may not materialise.
So, the time between a notice expiring and the landlord eventually issue a possession claim can in some cases be another three months.
Another lag is between the possession order expiring where the tenant should give up possession but does not or may require more time.
The timeline I have given as a typical period for each stage of the eviction procedure above practically is unrealistic. The time lag between the processes is much wider than what I have allowed, which means it would ordinarily take a landlord much longer to seek possession of their home or investment than my example above.
The unacceptable worrying trend that must stop
About 40 years ago, local authorities would accept an application for housing from a tenant and house a tenant upon the landlord serving a notice on the renter. In recent years this has changed right across all councils in England & Wales.
All local authorities started insisting on tenants to stay put, forcing the landlord to obtain a possession order.
This again changed starting from London borough councils insisting the tenant to stay put forcing the landlord to obtain physical eviction through a bailiff so the tenant would be evicted before the local Government would help the tenant.
It is right to ask when a court has granted a lawful possession order to a landlord, is it right for the council to force the tenant to go against that order?
The situation is now about to get worse; some councils are now advising all those seeking help with housing to file a defence when they do not have a defence.
These applicants seeking help from the local council are forced to file a dodgy defence, when the tenant does not want to defend, has no defence. If the tenant fails to abide by the request, the tenant is told by the local authority that they will not help them with their housing need.
Mr Sasha Charles, the CEO of Landlord Advice UK, said: “We have recently had a few cases where the local councils have informed our client’s tenants to file a defence to a possession claim when the tenant has no defence. The landlord and tenants, in some cases, have had a reasonable relationship between them, and the tenant does not want to file a false defence. These tenants have been forced to file a defence or receive no help in housing“.
Mr Sajjad Ahmad, the CEO of the British Landlords Association, said in response to this new trend: “This for us is a red line, we will take whatever legal action is required to stop this unlawful practice. We call on the Housing Minister Mr Robert Jenrick to write to the local councils to stop this unacceptable practice”. firstname.lastname@example.org
“If a local authority has no housing for the applicant, that is not the fault of landlords, the lack of social housing is the lack of investment in the social housing sector by consecutive governments.” He said.
What are landlord association and other organisation doing to protect landlord interests?
We cannot see any evidence that other landlord associations or organisation have yet tackled the issue of the CCJ’s or the issue of councils wrongly advising tenants to put in defence or face homelessness. They seem to be silent on the issue or they may not be aware of the problem.
The NRLA which is one of the largest landlords association in the UK (used to be known as the NLA and the RLA now merged) it would seem have not made any comments on any of the two issue’s above. However, the NRLA has been pro-active on the eviction ban issue along with ARLA. Almost all landlord associations, including small local landlord association to some degree, have voiced their opinion on the implications of the eviction ban on their members.
There is a need for all landlord association and organisations to efficiently concentrate their energy in dealing with the likes of Shelter and Generation rent. Some of the comments made by Shelter are not always accurate and are damaging to the interest of landlords.
They do not even serve the interest of renters. Read a blog from one of the BLA member who did some research on Shelter.The unacceptable worrying trend that must stop Click To Tweet
Author: Sarah Featherstone
Date: 6th of July 2020
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