Court of Appeal clarifies two-stage test in claim for beneficial interest in solely owned property.

In a dispute between former cohabitees, the Court of Appeal has clarified the two-stage test where a party seeks to establish a beneficial interest in property which is solely owned by a former partner.
It has long been established that a claimant must show there was an agreement that he should have beneficial interest in the property owned by his partner. If such an agreement can be shown to have been made, the court may then impute an intention that the claimant was to have a fair beneficial share in the asset and assess the quantum of the fair share in the light of all the circumstances.
The test has since been clarified. At the first stage, an actual agreement has to be found to have been made, which may be inferred from conduct. At the second stage, the court is entitled to impute an intention that each person to the share which the court considers fair, having regard to the whole course of dealing between the parties in relation to the property. A court is not entitled to impute an intention to the parties at the first stage.

Possession Proceedings – Unprecedented Changes (PD 55C)

The purpose of the changes is to take into account the effect of the pandemic on all parties maintaining confidence in fairness of outcomes, encouraging compromise and to ensure the defendants are provided with legal advice.

Current Restrictions

Moratorium on forfeiture of business tenancies extended until 31 December 2020 and is further extended until 31 March 2021.

In Commercial Rent Arrears Recovery proceedings (“CRAR”) the minimum unpaid rent must be equivalent to 276 days rent until 24 December 2020 and 366 days from 25 December 2020. The restriction on landlords using CRAR to recover unpaid rent will also automatically extend to the end of March, in line with the moratorium’s expiry date. This allows businesses sufficient breathing space to pay rent owed.

PD 55C: Possession Proceedings
Reactivation Notice required for stayed claims
New notice requirements for new claims

Overall Arrangements

Emphasis on compromise
Legal advice and assistance for defendants
Non-statutory best practice guidance:

– MHCLG guidance for private and social landlords and tenants

– NRLA Pre-Action Plan: Managing Arrears and avoiding possession claims

– FCA guidance ‘Mortgages and Coronavirus’ (to 31.7.2021)

– MHCLG Code of Practice for commercial property relationships during the Covid-19 pandemic (to 24.6.2021)

New Listing Priorities

Court will no longer fix hearing dates when claim is issued
No more block listing
21 days’ notice
Cases will be given priority if they involve the following:
Anti-Social behaviour allegations;
Extreme rent arrears;
Squatters or illegal occupiers and persons unknown;
Fraud or Deception;
Unlawful Subletting;
Allegations of abandonment of the Property;
Local authority temporary accommodation needed for reallocation

Covid-19 Case Marking

Intended to highlight settlement suitability and assist the court in dealing with listing, case management and the exercise of discretion
Any Defendant or private Claimant may request a case is marked
Specified information required
Upon making request must inform all other parties. Request will result in case marking unless objection raised
Judge may also direct that a case is Covid-19 marked

Review and Substantive Hearing Dates

The Review (R) Date:

– a 5-minute non-attended appointment on the documents

– requirements of the claimant relating to bundles before R date

– requirement that claimant is available to discuss the case during the R date

– consequence of failure to resolve case on the R date

The Substantive (S) Hearing Date:

– a 15-minute hearing attended by all parties 28 days after the R Date

– a physical hearing unless the parties agree otherwise or contingency arrangements apply

– unless case resolved, a decision by the Court or further case management directions

– adjournment considered without application where advice not yet made available to Defendants and consequences of order ‘may be serious’

Accelerated Possession Claims

As with existing rules, the court can still make a possession order without a hearing
Reactivation notice requirements apply for stayed claims
The same priorities apply as with normal cases in the order in which they will be dealt with
Will be referred to judges “at a manageable frequency”
Where the parties agree or there is no objection a review hearing can be ordered

Evictions

14 days’ notice of an eviction date required
Indicated that applications for transfer to High Court will not be prioritised
No execution of possession warrants or delivering notices of eviction between 17/11/2020 and 11/01/2021.
The Public Health (Coronavirus)(Protection from Eviction and Taking Control of Goods)(England) Regulations 2020
There will be no enforcement of possession orders “Where lockdown measures are in place to protect public health”
No evictions over Christmas Period save for the most serious of cases

How will the arrangements work in Practice?

The key aims of the overall arrangements are to reduce volume in the system by enabling earlier advice and facilitating settlement. How well this works in Practice is yet to be seen. What we do know is that delays will be inevitable and Covid-19 Case Marking is likely to become the norm. In the circumstances, it appears the Accelerated possession claims may be the ‘Cinderella’ of the situation.