Social Housing Speed Read – enforcing suspended possession proceedings
31st October, 2016
This week we consider the Court of Appeal's decision in Cardiff County Council v Lee, and its implications for landlords enforcing suspended possession proceedings.
What happened in Cardiff City Council v Lee?
Cardiff City Council brought a claim for possession against their secure tenant Mr Lee, and obtained an order for possession, suspended for two years on condition that he caused no further anti-social behaviour.
In 2015 the conditions were breached, resulting in the local authority requesting a possession warrant.
The Civil Procedure Rules at CPR 83.2 provide that warrants for possession require the courts permission – even in circumstances where a landlord has become entitled to issue the warrant due to a breach, as was the case here.
In this case (as has been the commonly accepted practice), the Council did not apply for permission but applied directly for the warrant using Form N325.
On the Defendant’s first appeal, the circuit judge ruled that the claimant should have sought permission under CPR 83.2 before requesting the warrant.
However, the appeal was dismissed, because the application before the district judge to stay the warrant had included a full assessment, and consideration of, the main issues – which allowed the Claimant to have a retrospective validation of their error under CPR3.10.
The Court of Appeal
The Defendant then appealed to the Court of Appeal. The Court has now cast a light on this rule, which it appears pretty much everyone (Landlords, Tenants and Courts) has universally overlooked:
“CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure from now on their systems are such that the same mistake will not be made in the future.” [Arden LJ]
The Court of Appeal also, of course referred to the overriding objective of the CPR.
Given that the local authority had made a genuine mistake and that the warrant was prompted and justified by new anti-social behaviour, the appeal did not succeed. Had the local authority sought permission as required, the warrant would have been issued anyway.
What are the repercussions?
This is a game changer for Social Landlords; the rules of the game are not new but nonbody has been playing by them save in exceptional circumstances.
As the Court of Appeal has made clear, landlords are (and must in future, unless this decision is overturned or rules are changed) expected to comply with CPR 83.2 and seek the required permission.
What should landlords do now?
Whilst the Court of Appeal did not set out explicit guidelines, landlords should ensure that they:
Complete a Request for a Warrant;
Complete an application for permission to issue the warrant (on standard court form N244); &
Include evidence of the breaches of the original suspended possession order.
The “new” (but not new) requirement that a further application is made does, of course add a layer of expense delay and complexity to an already-protracted process.
Producing evidence of tenancy breaches in support of warrant requests, or warrants which are now in process and are later challenged by the defence isn’t likely to be difficult.
Landlords whose warrants have already been issued might look to rely on CPR 3.10 and the overriding objective. For landlords who are yet to request possession warrants, following the guidelines set out above is now crucial.
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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