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COVID-19: Government amends and extends suspensions on possession proceedings

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By David Hitchcock

The Government has officially announced that the temporary suspension on most possession proceedings introduced earlier this year will be extended up to at least 23 August 2020.

This comes shortly after the case of Marshall (Arkin) v Marshall & Another, where the Court of Appeal confirmed the suspension on proceedings was lawful. The Court also concluded that, although judges retain the power to lift the suspension in individual cases, it would be nearly impossible to envisage a case where the use of that power would be justified, and parties should, therefore, be reluctant to “rely on their particular circumstances – however special they might be said to be – as the basis on which the stay should be lifted in their particular case”. This case very much sets the tone of the new Court rule, which extends the effective blanket stay on most possession proceedings, despite any particular difficulties this may bring for landlords.

The new rule (CPR 55.29) comes into force on 25 June 2020, when the suspension previously put in place by the Government was due to end. The effect of the new rule is that all possession proceedings and enforcement proceedings currently suspended will continue to be suspended, and any new claims brought between 25 June 2020 and 22 August 2020 will also be suspended, until 23 August 2020.

One interesting amendment introduced by the new rule is the addition of a new paragraph making clear that this stay on proceedings does not prevent the bringing of a claim, notwithstanding the fact that it may be suspended. This clarifies that landlords can do most, if not all, of the necessary preparatory work and submit the claim documents to the court, with a view to them being dealt with as soon as possible, once the suspension is over. This may be a wise move considering the likelihood that the courts will have a significant backlog of cases to deal with at that point. This is of course subject to the landlord having grounds to seek possession, which may not be the case for landlords of certain business leases seeking to rely on non-payment of rent occurring between 26 March and 30 June 2020, due to the separate moratorium under section 82 of the Coronavirus Act 2020 which prevents forfeiture for that reason.

It may seem difficult to reconcile the various new rules and regulations and understand exactly how they join together, which is why it is important to seek professional advice when trying to protect your interests. Expert professional advice can help you to better understand your position and the options available to you to protect your commercial and/or financial position whilst the pandemic and resulting business disruption continues. This can include preparation for possession proceedings or, for example, striking an informal arrangement in the meantime.

As well as advising you regarding your position, an expert can also help to ensure that any such short-term arrangements are properly documented – for example, to ensure that the landlord does not inadvertently waive their right to forfeit the lease in the future, once the temporary suspension is lifted.

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