Social Housing Speed Read – consequences of Cardiff CC v Lee
21st November, 2016
We look again at the Court of Appeal's decision in Cardiff County Council v Lee, its consequences in the lower courts, and what it has meant for practitioners so far.
What happened in Cardiff CC v Lee?
For a re-cap on the Court of Appeal decision and its guidance, please click here.
In brief, the Court of Appeal decided that the Court’s permission was needed before a landlord applied to enforce a suspended possession order (in the event of a breach) by applying for a warrant of possession.
The Court of Appeal pointed out that this was not a new rule – just one that hadn’t been followed (or enforced) in practice.
Nevertheless, it is something of a game changer for Social Landlords who face an additional hurdle both financially and administratively when seeking evictions.
The lower courts also now face the burden of dealing with the (now) necessary applications – and there is already evidence that the decision in Cardiff CC v Lee is proving unpopular.
CPR and possession warrants
The rules which govern possession warrants are found in Part 83 of the Civil Procedure Rules.
CPR 83.2 provides that Court’s permission is required in order to issue a warrant. This rule seems to apply in all circumstances – i.e. whether a suspended possession order was made on rent arrears grounds or in respect of anti-social behaviour.
CPR 83.26 deals with warrants of possession in more detail, particularly what is required to enforce a possession order suspended on terms as to the payment of rent.
In short, the landlord (or their solicitor) is required to certify in the warrant application form that instalments have been missed and that amounts are outstanding under the terms of the original possession order.
Read in isolation, then (as everyone has done for years) CPR 83.26 appears to impose no additional step as to the Court’s permission being required before a warrant application can be made.
A different interpretation…
One regional County Court has already provided its interpretation of how these two parts of CPR 83 interact.
It has decided that applications for permission for warrants on arrears grounds are superfluous – and has struck several of these applications out.
In so doing, it has held that CPR 83.2 applies where there is a need for the Court to find that the conditions for possession have been fulfilled, such as anti-social behaviour having occurred.
By contrast, non-payment of rent can be established objectively – and the landlord has to certify this in its warrant application.
This is an interesting interpretation of the Civil Procedure Rules. It will also be interesting to see whether other Courts adopt a similar approach, or whether the Court of Appeal’s stance is followed.
In the medium to long-term, this is may be resolved by either the Supreme Court (if someone has the appetite and / or deep pockets) or an amendment to the Civil Procedure Rules.
How should I request a possession warrant for arrears?
Although this depends on your relationship with your local County Court, you might ask how they intend to deal with warrant applications in light of the Court of Appeal’s guidance (if you are a member of a County Court user group, this might be the best forum for these questions).
Otherwise, and unless there’s advice to the contrary, the assumption should be that an application for permission is needed.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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