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Is Alice off to Wonderland again?

In our March newsletter we reported that landlords of business tenancies to which the Landlord and Tenant Act, 1954 applies cannot enforce, by proceedings or otherwise, a right to forfeit or re-enter premises for non-payment of rent during ‘the relevant period’. This relevant period commenced on 26 March and was due to expire on 30 June, 2020. That date was subsequently extended to 23 August, 2020. Residential tenants, too, were given protection from eviction until 30 September.

In the meantime, Ministers worked with the Judiciary to ensure that when eviction proceedings do re-commence, arrangements are in place to assist the courts in giving appropriate directions re further protection for those tenants who have been particularly affected by coronavirus. Additionally, the Civil Procedure Rules needed some temporary amendments and, for instance, a stay was imposed on any proceedings commenced under Part 55 (other than in relation to trespassers). Part 55 relates to any claim for the recovery of land (including buildings or parts of buildings).

However, litigation arose in several cases over whether or not subject tenancies had been properly excluded from the Landlord and Tenant Act, 1954 and if not, whether the stay on possession proceedings applied. The question extended, too, to any appeal. The Court of Appeal found (TFS Stores Ltd v BMG (Ashford) Ltd and others [2020] EWCA Civ 833) that in any proceedings where possession was ordered, possession must have been claimed. Giving judgement, Sir Geoffrey Vos said “CPR Part 55 is mandatorily applicable to possession claims brought by landlords”and a stay must therefore apply. He continued to say if proceedings are stayed, “nothing can happen in court at all”.

Wilberforce Chambers expressed the view on its website that the clear message in the above case would reach courts at all levels but then points out that a differently constituted Court of Appeal sitting just a week later appears to have cast doubt on the decision. “Perhaps a stay does not quite mean what it says in every case, and tenants must prepare to fight more applications to lift the stay.” Oh dear!!

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