Assisting tenants faced with possession action

Topic last updated February 2019

 

i_black.jpg Any tenant who has been given notice by their landlord should be referred to the Housing Advice Service for options advice.

 

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Checklists and flowcharts

What the landlord must prove to the court in possession hearings

For Protected, Secure and Assured tenancies

For Unprotected Tenancies and Licenses

How can possession be challenged?

Mounting a defence

Procedural errors

Disabled clients, and others with protected characteristics

Has the landlord followed procedure correctly?

Pre-action Protocol for Possession Claims by Social Landlords

The Civil Procedure Rules - why are they important?

Procedure for Possession Claims Online (PCOL)

Other things to look out for

Validity of Section 21 notices

The notice itself

Compliance with Tenancy Deposit Protection

Compliance with providing prescribed information

Filing a defence

The defence form - things to note

When can a defence be filed?

Making a counterclaim

Circumstances of making a counterclaim

Costs in counterclaims

Suspending warrants for possession

 

Checklists and flowcharts

Here is a quick link to a checklist to use in relationship to this topic (updated April 2018)

There is also a useful flowchart and summary of the Deregulation Act changes to S21 validity, and an alternative S21 validity flowchart.

 

 

What the landlord must prove to the court in possession hearings

For Protected, Secure and Assured tenancies

For Unprotected Tenancies and Licenses

How can possession be challenged?

Before you know how you can help a customer who is threatened with eviction, you need to:

Mounting a defence

When a tenant has been served with a court order, there is a tick box to indicate whether or not the action has been brought on:

The court's powers in relation to claims on discretionary grounds are wide, and exist right up until the bailiffs execute an order for possession by carrying out the eviction, so it is worth considering a defence with the tenant.

Note that the court has no power to adjourn a possession claim brought against an assured tenant under ground 8 (mandatory ground for arrears), to allow time to resolve a Housing Benefit issue. They can merely postpone the execution on hardship grounds.

Procedural errors

However, regardless of the possibility of mounting a defence, you should consider whether the correct procedure has been followed in bringing the case to court, as this will separately influence whether the possession goes ahead (see below).

Disabled clients, and others with protected characteristics

Any eviction (including those on mandatory grounds) can be challenged under the Equality Act 2010, if a client has protected characteristics, and if the landlord has said anything in correspondence that would you lead you to believe that discrimination is possible. Once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to prove otherwise. Please refer to page 75 in the course notes. A key case to refer to is Akerman-Livingstone v Aster Communities Ltd (2015) UKSC 15

Has the landlord followed procedure correctly?

Pre-action Protocol for Possession Claims by Social Landlords

Councils and RSLs must comply with a specific Pre-action Protocol, which lays down the procedures that should be followed prior to court action being brought. This protocol was updated in April 2015, and can be found here, on page 108 in the linked document. It is important to bear in mind that:

The Civil Procedure Rules - why are they important?

Any action brought for possession (by any landlord in any sector) must comply with the 'Civil Procedure Rules' (CPR 55). Alongside these rules are 'Practice Directions' (which are more detailed procedural guidance).

An example of a requirement of the CPR/PD is that, if the claimant wishes to rely on a history of arrears which is longer than 2 years, he should state this in his particulars and provide a full (or longer) schedule to the witness statement.

It is important to bear in mind that failure to comply with the CPR or PD will improve the chances of achieving an adjournment or striking out of a case. This can happen regardless of whether there is a case to answer, because compliance with the CPR is a separate issue from the merits of the case itself.

Procedure for Possession Claims Online (PCOL)

There are separate procedures for making a claim for possession using the on-line route (PCOL).  These can be recognised by the Court Fee, which will be £250 rather than £280. There will also be a letter in the court envelope, providing a login. This route is slightly cheaper for landlords, and involves them typing the particulars into a website, for printing by the Court. If the possession proceedings relate to arrears, an arrears schedule is not provided online, but the claimant must comply with a 'pre-issue' step of providing the arrears statement to the defendant on two separate occasions - before and after commencing proceedings. This must contain the information specified in Part 55B Practice Direction. You should check with the applicant that they have been provided with this information if the PCOL route has been used.

Other things to look out for

Validity of Section 21 notices

Please also see training notes on the Deregulation Act 2015, and material in the National Resources Section  >  Housing Advice and Prevention Resources  >  Preventing Homelessness  >  Invalidity of Section 21 notices.

The notice itself

Because possession is mandatory under the S21 procedure, it is important to check that the notice is valid. The requirements are as follows:

 

Assured Shorthold Tenancy:

Still in the fixed term when S21 notice issued*

  • Notice must be at least 2 months

  • In writing (not necessarily in prescribed format, except if tenancy started after 1st October 2015)

Assured Shorthold Tenancy:

Was a fixed term, but that terms had expired before the S21 notice issued

  • As above (see National Resources > Case Law Digest > Private rented Sector > Assured Shorthold Tenancies > Spencer v Taylor)

Assured Shorthold Tenancy:

Was always a periodic tenancy (not a fixed term)

  • As above, ALSO

  • Must mention Section 21, Housing Act 1988

  • Must give a possession after the last day of a tenancy period (a specific date need not be quoted).

* Although proceedings can be commenced within the fixed term, possession cannot be given until at least 6 months after the tenancy start date.

Landlords need not proceed to court within a specified period (there is no maximum validity period for a Notice).

Compliance with Tenancy Deposit Protection

If a landlord has failed to protect the tenant's deposit within 30 days of receiving the payment, any S21 notice will not be valid unless/until:

The landlord cannot retrospectively protect the deposit after this 30 day period.

 

Compliance with providing prescribed information

If, however, the deposit has been protected in a timely way, but the prescribed information has not been supplied within 30 days, a S21 notice would not be valid unless the landlord now serves the prescribed information, OR complies with one of the remedies above.

If prescribed information has been supplied, you need to look for completeness and adequacy of that information. The case of Ayannuga v Swindells confirms that any omission other than a minor one would render the notice invalid.

In particular, look for:

Ask the tenant about the existence of a 'relevant person' (a third party who pays the deposit on behalf of the tenant, such as homeless prevention fund, Social services or a family member). Such a person should have the information served on them too.

 

Filing a defence

The defence form - things to note

The form for defending a claim for possession of any rented property is Form N11R, and the notes are N7A. On the defence form, the defendant must say whether, for each point, they admit the claim, deny it, or require the claimant to prove it.

The form requires the defendant to specify their regular outgoings. however, be aware that the list of outgoings does not include rent, and this must be factored into a calculation of what can be afforded as repayment of any arrears. For this reason, you should complete question 10, which reads 'How much can you afford to pay in addition to the current rent?' AFTER having completed the expenses analysis at question 26.

When can a defence be filed?

The defendant has 14 days from the 'Deemed Date of Service' of the possession action to file a defence. The Deemed Date of Service is the second business day after the date of posting, faxing or personal delivery.

The defendant will be expected to put forward a summary of the facts that support an alternative version of events. The defence is a statement of case, like the 'Particulars of Claim' that the landlord submits, and must therefore be verified with a Statement of Truth, signed by the defendant themselves.

Making a counterclaim

Circumstances of making a counterclaim

If a tenant owes rent to the landlord, and the property is in disrepair, it is possible to make a counterclaim for compensation relating to the disrepair. You need to consider the following:

 

Disrepair claims can be made as a stand-alone action, as well as in response to a possession action. They can also be brought up to 6 years after the breach, and after the tenancy has ended. HOWEVER, note that legal aid is only available (subject to eligibility) when the action relates to possession, and not when the action is JUST a disrepair claim.

 

A counterclaim can also be brought against a private landlord for a tenancy deposit penalty payment, as well as for disrepair.

Costs in counterclaims

If a tenant brings a counterclaim to a possession action for arrears, and is eligible for legal aid, the tenant will have a solicitor and the landlord is liable to incur legal costs. The legal aid applicant is protected from costs, even if he loses. For this reason, landlords will often drop the possession claim, rather than risking spiralling costs, even if the case is strong.

 

Suspending warrants for possession

Once possession has been granted, the tenant need not leave until a warrant has been executed.

Where the possession order is on discretionary grounds, the court can vary the conditions upon which possession is suspended, right up until the actual eviction.

If the grounds are mandatory, the court cannot suspend a warrant for possession.

A warrant for possession is only valid for one year - so check the date.