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Sean Hooker, Head of Redress at the Property Redress Scheme, discusses the current court dilemma facing many landlords as a result of COVID-19, and offers practical advice on how to navigate this turbulent period.
The English love a queue, but this trait is going to be sorely tested when the English courts reopen on 21 September to start dealing with the backlog of what is estimated to be over 25,000 domestic residential possession claims. It is going to take a colossal effort to clear this huge number of cases and it will not even be a matter of receiving a ticket and waiting your turn. Each case will need to be reactivated and prioritised and various hoops will need to be jumped through before it even lands on a judge’s desk for a decision.
This is, of course, dependent on whether the Government decides to do a U-turn at the witching hour, as they did with the last proposed reopening date, and extend the moratorium even further.
It must be said that the rules and regulations now have significant differences across the country due to devolution. The processes and notices, in Wales, Scotland and Northern Ireland are the responsibility of the separate parliaments and assemblies of the constituent countries of the UK, however the court rules for England and Wales are in common. I will therefore concentrate on the English situation, however significant delays will also apply in all jurisdictions.
For new possession claims in England, the situation is even worse; whilst possession notices have continued to be permitted to be served, the notice periods have been extended. This was first amended from two months to three months and has now been updated to six months. And whilst there are special shorter notice periods for various priority cases, such as cases of domestic violence, anti-social behavior and long term arrears, these will need to have hard proof and mean more contested cases.
Add to this the reluctance of the Government to consider any form of material rescue package for either landlords or tenants in England and the prospect of this situation being resolved in anything but a chaotic manner is remote to say the least.
Now, I know we live in strange times and the media is prone to hyperbole and exaggeration, but hand on heart, I really do not think that this is one that can be put down to scaremongering, or a project fear by one side or the other of the campaigners lobbying government for either landlords or tenants.
The evidence is clear, actual evictions in most cases are many months down the line and it may well be next summer before many of the cases come to fruition.
By this time, many thousands of landlords will be in serious arrears and tenants desperate to escape the chains of increasing debt and insecurity, only to join an even longer queue of those reliant on local authorities to rehouse them. Landlords risk criminalisation, when faced with either paying their mortgage or repairing their properties, risking repossession or prosecution, and remain stuck between the ultimate rock and a hard place dilemma. Winter is coming, boilers will fail, roofs will be damaged and pipes will burst. Your tenant may not be paying the rent but your obligations under Section 11 remain firmly in place.
What is also clear, is that an increasing number of landlords and agents, will lose patience and take matters into their own hands. A recent report by Cambridge House, a charity that deals with illegal evictions and harassment cases, examined the shadow private rented sector and how this has grown, but now includes landlords who hitherto were law abiding and are now engaging in illegal activity. Fears are that COVID-19 will see a spike in these cases.
So, what light is there at the end of the tunnel, what do you do if you are trapped in this perpetual line? First of all, as Dad’s Army’s Corporal Jones frequently cried “Don’t Panic!” This sounds easy to say, but the reality is, that getting frustrated and trying to jump the system will probably backfire, and you could well find yourself relegated to the back of the queue. The process is like a complex game of snakes and ladders and you need a clear mind to play it.
You therefore need to know exactly what you need to do. The process is complicated and let’s face it, is constantly changing. You need to learn the rules and then rely on the luck of the dice.
So do not hesitate to ask for help. This means expert help, not your mate down the pub (even if you are able to meet at your local!) or a barrack room lawyer on Facebook or a random Google search leading to a chat room peddling so called authoritative free advice.
Yes, there are brilliant organisations out there that are providing support, help and advice. Landlords can join the NRLA and get first class help and support. Agents can join one of the established trade bodies who again provide the training and assistance they need. However, even with the best will in the world, for most individuals faced with the prospects of navigating this path, the journey is going to prove too arduous, stressful and costly. Getting somebody to help carry the burden is essential.
Choosing the right help is also paramount. Let us not beat about the bush, it is going to cost you some money. However, you should weigh up the potential losses that you stand to lose if you do nothing or go it alone.
You should also ensure that the help you get is qualified, professional and appropriately accredited or authorised. Individuals and companies should be experienced in the housing area and have the appropriate protections and insurances in place, just in case anything goes wrong. The Solicitors Regulation Authority authorises legal firms and has strict rules on practices and standards, so you should always look for this when you instruct any legal assistance.
With this the new regime in place, far more emphasis has been put on non-court processes that are focused on keeping tenants in their properties, rather than being evicted. The idea is to reach settlements, rental plans and mediated solutions.
Landlords who were already waiting for a court date, now have to reactivate their cases. As part of this process they now need to demonstrate that they have taken the individual circumstances of their tenant into consideration due to the impact of coronavirus. The more that a landlord can show they have been proactive in trying to reach solutions and have helped their tenant, the better the outcome is likely to be.
It is therefore essential for a landlord or their agents to engage with tenants and to try and negotiate with them to reach a settlement, and avoid the lengthy and costly court approach wherever possible.
If you have built up a good relationship and trust with your tenant, this route is very likely to be more productive than relying on a court to get around to hearing your case.
Of course, in these uncertain times, the previous good relations you may have had with a tenant could now be in tatters, through no fault of either party. In these cases, the solution is to seek neutral mediation by a third party. This is by far the most successful way of resolving matters, leading to a robust and lasting agreement.
Negotiation, even facilitated by a third party, does have the tendency to breakdown, if one party feels in a weaker position. I therefore feel that some of the services being offered in the wake of this crisis are limited and have lower success rates than classic mediation.
I have seen automated portals that allow a landlord and tenant to correspond with each other online and which provide help and advice during the process through guides and help sheets. I have also seen the emergence of so-called mediation services, which offer an hour long, telephone conference between the parties with a third party moderator in attendance. This method can reach agreements, however experience shows that tenants can feel intimidated or railroaded into accepting a settlement and therefore are far more likely to renege. It reminds me of the Brian Clough method of resolving differences, namely talking the matter through for fifteen minutes and then deciding that he was right.
It’s worth therefore looking for a proper mediation service, in which the mediator acts as the intermediary between the parties, with each party having confidential access to the mediator and therefore being able to openly share their fears and concerns.
Given the current restrictions, this can now all be done by telephone and, whilst it is slightly more expensive, the success rates are high.
At the Hamilton Fraser Group, we have experience of both running redress schemes and being experts in dispute resolution, as well as running a leading authorised legal firm specialising in possessions and debt recovery. Given our unique position, we were determined to ensure we used it to help people in the rental sector through these difficult times. We have adapted our support as each new announcement and change to the process has happened and will continue to do so. Our Property Redress Scheme Mediation Service was set up in record time and we have been able to deliver an excellent service, with highly successful outcomes. We have even been able to bring the cost down.
Our established and respected SRA authorised law firm, Landlord Action, has been supporting landlords and agents through this tortuous time and has provided reassurance and assistance to the highest level. Where things have changed, we have not increased charges or exploited the situation.
To this effect, our latest proposition is to closely align both of our services into a joint offering, that allows Landlord Action to handle the initial possession notice and preparation for a court hearing, with access to the Tenancy Mediation Service.
Put it this way, it will allow you to stand in two queues at the same time without losing your place or put it another way, it is like a priority pass for Harry Potter – Wizarding World for the most popular rides!
It reminds me of a story my dad told me of when he was a kid. He and his brother used to go down to Highbury, the then home of Arsenal. They would be there at about midday on a Saturday afternoon and wait for my granddad, (who like most manual workers worked five and a half days a week), to finish his morning shift and make his way straight to the ground to join the boys who were holding his place in the line in order to get in for the kick off at 3pm.
Our new service will do this for you and then play the actual match to get you the best result we can.
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Property Redress Scheme is approved by Government under the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015