Q. What does PD55C mean for possession proceedings?
PD55C came into force on 22 August 2020 and governs possession proceedings from the 20 September 2020 until the 28 March 2021. It separates all existing possession claims in two groups, those issued before 3 August 2020 and those issued on or after 3 August 2020.
The practice direction sets out the process to get cases up and running again. This will be done through the filing and service of a reactivation notice. Confusingly, PD55C refers to 'stayed claims' (brought on or before the 19 September 2020) and 'new claims' (brought after the 19 September 2020).
Q. Is there a standard form of reactivation notice?
There is no prescribed form. It must inform the Court whether the case is to be listed, relisted, heard or referred and set out what knowledge the party has to the effect the pandemic has had on the defendant and their dependents.
There is no suggestion that a fee will be payable.
Where the claim includes non-payment of rent, landlords must provide in their claim any information about a tenant’s circumstances.
Where the claim is based on rent arrears, the landlord must provide an updated rent account for the previous two years
If case management directions about the possession proceedings were made before the 20 September 2020, the reactivation notice must include a copy of the last directions order, new dates for compliance with directions taking into account the stay in proceedings before the 20 September 2020.
Q. What happens after?
Once a reactivation notice has been served, the receiving party has 14 days to file a response. The party responding must state whether there is anything contained within the reactivation notice that it does not agree with.
If a reactivation notice is not filed by 4pm on 29 January 2021 then the claim will be automatically stayed, and an application to the Court will be required to lift the stay.
Q. What if a hearing date was set before lockdown, do you still need to file a reactivation notice?
Yes - If a trial date had already been set before 27 March 2020, that trial date will now be vacated and stayed unless a reactivation notice is filed and served within 42 days of the trial date. A copy of the last directions with new dates for compliance must also be included as well as, a draft order for new directions with a new hearing date or confirmation that the existing hearing date can be met, and a statement saying whether the case is suitable for remote hearing.
Q. What about new possession proceedings and stayed possession claims started on or after the 3 August 2020
The requirement for a reactivation notice does not apply to stayed claims brought on or after 3 August 2020 or stayed claims in which final possession order has been made.
The claimant must tell the Court anything they know about the effect of the pandemic on the defendant and their dependants. This also applies to accelerated possession claims.
That notice must be served on the defendant not less than 14 days before the hearing.
Q. I have a lease of a flat that now has less than 70 years left to run. I have read that I might have trouble selling or getting a mortgage. Can I extend my lease?
A. There is a legal right for a leaseholder to extend their lease once they have owned it for two years. The right is to add 90 years to what is left on the existing lease at a "peppercorn rent" (i.e. no ground rent is payable). For example, if your lease has 70 years left to run, the new and extended lease would be for 160 years.
The landlord is entitled to a premium for the lease extension based on a particular formula and advice on the premium should be obtained from a specialist surveyor. You will probably have to pay the landlord’s legal and surveying fees in addition to the premium and your own professional fees. If agreement cannot be reached with the landlord about the premium or other terms, the matter can be referred to a tribunal for a decision.
Q: I have a lease of a shop that is coming to an end and I do not want to renew my lease. My landlord has mentioned that the property is in a poor condition, but I know that the landlord has planning permission to convert the shop into flats once I leave. How should I respond to the landlord?
If you have repairing obligations under the lease and you haven’t complied with those obligations, then the landlord may be able to look to you for the cost of putting the property back into repair. This process is started by the landlord serving a schedule of dilapidations.
The schedule should highlight the part(s) of the property in disrepair, what works are needed, and what the works will cost. If the landlord is following the relevant protocol for these types of claims, you will have the opportunity to respond fully to the schedule and the assistance of a building surveyor may be required. The landlord should not issue any court proceedings against you until all steps under the protocol have been exhausted.
However, by law, the landlord is prevented from recovering any money from a tenant where it can be shown that the property, regardless of condition, is to be pulled down or where structural alterations are to be carried out when the lease ends that would render any repairs pointless. This may be relevant here and should be considered as part of any response you provide to the schedule.
If you would like to discuss the issues detailed above please contact Mark Steggles, Partner, 01892 701273