The government’s attempts to deal with the consequences of the coronavirus pandemic include restrictions on evictions.
However, there are exceptions to the embargo on evictions. One of the exceptions is in cases of substantial rent arrears, if the court is satisfied that the possession order to be enforced was (at least partly) based on arrears.
In The Master Wardens and Assistants of the Guild Fraternity of the Brotherhood of the Most Glorious and Undivided Trinity and St Clement in the Parish of Deptford Strond Commonly Called the Corporation of the Trinity House of Deptford Strond v (1)Prescott (2) Byrne [2021] EWHC 283 (QB), the rent arrears were significant (and, indeed, had existed at the outset of the proceedings).
A possession order (the order) had been obtained but it was not based on arrears. Master Dagnall rejected the argument that the way the rent arrears exception is framed constitutes an unjustifiably discriminatory interference with a landlord’s human rights. Although the result could be seen as unjust, the order could not currently be enforced.
The claimant landlord let 13 Merrick Square, Southwark, London SE1 4JB (the property) to the defendants under an assured shorthold tenancy. In 2019 there were rent arrears, and notices under s21 and s8 of the Housing Act 1988 were served. Possession proceedings were issued relying on s21. Although there was an application to amend these proceedings to include possession under Grounds 8, 10 and 11 (the rent grounds) of Schedule 2 of the 1988 Act, when the claim came before DDJ Rea on 10 January 2020 this application was not pursued. The order gave possession of the property and stated: “This Order has been made on mandatory grounds, Section 21, AST…”. There was also a money judgment for the arrears of more than £27,000.
Ordinarily, obtaining a possession order based on s21 (rather than the rent grounds) would not adversely affect a landlord. However, these are not ordinary times. Before the claimant could enforce the order, the pandemic struck and restrictions on evictions were imposed. Eventually, enforcement of the order was transferred to the High Court. The restrictions in force when the matter came before Master Dagnall were set out in the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 SI 2021/15 (the regulations). These were due to last until 21 February 2021, but it now known they will be extended.
The regulations prohibit execution of writs or warrants of possession save for certain circumstances including the substantial arrears exception. This requires that the court be satisfied that there are more than six months’ rent arrears and (in the case of assured tenancies) that the notice, writ or warrant relates to an order for possession made wholly or in part on the rent grounds. When the matter came before the master, the arrears were in excess of £70,000 – more than 20 months’ worth. It was argued that the rent exception in the regulations should be read to allow the claimant to proceed with the eviction.
The argument was that the regulations had interfered with the claimant’s property rights under Article 1 of the First Protocol to the Human Rights Convention (by preventing it enforcing the order) and that this interference was discriminatory (in a broad sense) as it treated landlords with rent arrears differently depending on whether they had a possession order based on a rent ground or on s21. This discrimination could not be justified, and therefore the regulations should be read in such a manner as to remove the discriminatory effect.
Master Dagnall was not persuaded. Although he was prepared to accept that there had been an interference with the claimant’s property rights and possibly that this was discriminatory, it was justifiable. There were proper policy reasons for the distinction. Further, the regulations could not be read in the manner which the claimant was contending. The court was not satisfied that the rent exception applied and refused to make the necessary declaration.
In addition to the substantive issue, a couple of procedural matters were also clarified. Where enforcement of a county court possession order has been transferred to the High Court, it is the High Court that should be satisfied that the enforcement falls within an exception to the regulations. An application to determine whether the court is so satisfied should be an application on notice.
Elizabeth Haggerty is a barrister at Lamb Chambers
