Landlord and Tenant repossessions and trespassers during COVID-19

Mark Aspin Director and Head of Dispute Resolution provides an update

As we have previously reported, as a result of the Coronavirus Act and changes to the court rules, tenants in both commercial and residential properties have been given extra protection to avoid eviction during government restrictions and the coronavirus pandemic.

The courts have now, however, modified the general stay on possession proceedings that was granted recently and added the following exceptions:

• Claims for trespassers against persons unknown
• “Interim Possession Orders”
• Claims for injunctive relief
• Applications for agreed directions

This has to be viewed as a positive development. Whilst Landlords and Tenants in both commercial and residential properties ought to be co-operating whilst business is affected globally, land owners still ought to be able to protect their property against “squatters” who move in without any legal authority in the first place.

Further, where a possession claim is contested, the ability to progress the litigation by the setting of directions benefits the administration of justice generally – after the 90-day stay expires the parties will have progressed the case, and no doubt the parties will co-operate in according with the Court Rules in trying to agree directions as a complete stop will benefit no party.

Nevertheless, questions remain to be asked if the balance has been struck correctly. Tenant companies who have been forced to close and residential tenants who have lost their income rightly have security they will not be forced out if they can’t pay their rent. Homelessness should be protected, as a matter of policy, whilst a level of lockdown is required.

However, what about where possession is required for some other reason? For instance a tenant who is deliberately damaging the property – whilst injunctive relief is still possible, the best remedy is recovering possession. How about where a tenant was in arrears well before the pandemic hit and a landlord was going to seek possession but got caught out by the change in the rules? Possession is likely to follow in any event, and (depending on exactly circumstances) a Landlord could be using the opportunity to carry out works to the property whilst it would be closed in any event to maximise the prospects of re-letting when practical and minimise the period when no rent is being received.

Even the recent changes have gaps – the limitation to “persons unknown” appears to be designed to prevent claims against “technical trespassers” as opposed to “squatters” falling within the exclusion. However, they would also cover claims against squatters where the squatter is known.

The courts must continue to work and justice must continue to be done – where necessary and effective with social distancing being respected. Whilst Landlords must work with Tenants to try to achieve a mutually beneficial outcome; where that fails or where there are “problem tenants” or even trespassers, Landlords ought to be able to protect their property. Contact us to discuss your options if you fall into the latter category.

[1] Civil Procedure Rules Practice Direction 51Z

Please contact our Dispute Resolution Team on 01228 516666 if you require any further advice on the above.