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Procedural possession warning to landlords

In this article we look at a recent judgment of the Court of Appeal on the enforcement of suspended possession orders and the procedure required by the Civil Procedure Rules 1998.

The case of Cardiff County Council v Lee [2016] EWCA Civ 1034 came before the Court of Appeal recently, with judgement handed down on 19 October 2016.

The claim was one for possession of a residential flat, issued by the local authority against the tenant on the grounds of breach of the tenancy and nuisance. However, the main argument in this claim was of procedure rather than fact.

The local authority had obtained a possession order, which was suspended for two years on the condition that there would be no further breach of the tenancy and that the tenant would cause no further nuisance.

The local authority requested an eviction directly from the Court, on the basis of further alleged breaches.  The warrant for eviction was issued and the tenant applied to stay the enforcement of that warrant.

At the hearing of the tenant's application to stay the eviction, the Judge found that the tenant had breached the terms of the tenancy and dismissed the application.

The tenant appealed the decision, on the ground that the local authority had not followed the correct procedure to request an eviction under a suspended possession order.

The tenant relied on Rule 83.2(3)(e) of the CPR which provides that: "A relevant writ or warrant must not be issued without permission of the Court where:

  • (e) Under the judgment or order any person is entitled to a remedy subject to the fulfilment of any condition and it is alleged that the condition has been fulfilled …"

The tenant's argument was that Rule 83 contains an important protection for tenants and that this protection is mandatory.

By the time that the matter came to the Court of Appeal both sides had accepted that Rule 83 applies to the enforcement of suspended possession orders.  The local authority was by that time relying on Rule 3.10 of the CPR, which allows the Court the general power to rectify procedural errors where the error does not invalidate any steps taken in the proceedings.

The appeal was dismissed on the grounds that Rule 3.10 applied and as the tenant had applied to stay the eviction and lost that application this had the same effect as if the local authority had made its application to enforce the warrant under Rule 83.

However, importantly the Judge was careful to stress that Rule 83 applies to the enforcement of suspended possession orders and that, while the factual matrix of this case resulted in the local authority being successful, such procedural errors would not generally be tolerated by the Court in circumstances where landlords were seeking to enforce suspended possession orders in the future.

In terms of recommendations for landlords the ideal situation is to avoid suspended possession orders if possible and if an agreement is reached to suspend enforcement, then to incorporate that agreement into a separate side letter.

Alternatively landlords will need to put procedures in place to ensure that the correct application is made to the Court before the request for warrant is sent.

It is likely that most applications for permission to enforce a warrant will be capable of being made on paper without the need for a hearing to take place, but this will still mean an additional cost and delay for landlords seeking to enforce.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

John Weeks

Associate

I specialise in landlord and tenant issues, boundary disputes, lease renewals and possession claims.