Don’t get court out

Last year saw more people than ever challenging possession orders with public law defences. These put housing officers’ possession procedures under the spotlight as tenants brought defences relating to human rights legislation and judicial review principles to the County Court instead of the High Court.It may be no coincidence that the number of possession orders made in 2009 fell steadily, from 23,865 in the first quarter to 22,308 in the last. For every failed case, landlords had wasted valuable time and money. Follow these steps on how to prepare properly to help ensure your organisation doesn’t add to the statistics.

1. Identify the agreement

Social housing is commonly let on one of nine agreements (see below). Correctly identifying the agreement first is critical as it will tell you the occupier’s security of tenure, the type of notice to be served and the law that will govern the claim. This can be tricky, as the law, not the parties, will determine the nature of the agreement.

The agreements are:

• Introductory tenancy
• Secure tenancy
• Assured tenancy
• Assured shorthold tenancy
• Demoted tenancy
• Family intervention tenancy
• Common law tenancy
• Protected tenancy
• Licence

Pitfall to avoid Mistaking the agreement, serving the wrong notice and invalidating your claim.

2. Exhaust the alternatives

The Civil Procedure Rules and their pre-action protocols make litigation over possession a last resort. They include a protocol specifically for possession claims based on rent arrears. If that protocol doesn’t apply in your case, you should still follow the spirit of the protocols. The court can impose sanctions for failure to do so and, with occupants increasingly taking advantage of public law defences, suitable alternatives to possession should be explored before any notice is served.

Pitfall to avoid Ignoring the alternatives, serving notice prematurely and having your claim dismissed.

3. Get the notice right

Landlords must usually serve a notice before beginning a claim, either to end the tenancy or licence or enable the court to hear the claim. The type of notice will depend on the agreement - for example, a secure tenancy requires a notice of proceedings for possession, while a common law tenancy requires a notice to quit. You can check which notice applies in your case at www.insidehousing.co.uk

Getting the content and expiry of the notice right is critical, as any defect could invalidate both the notice and the claim. If the agreement identifies particular methods of service, these should be used and a Certificate of Service (below) should be completed.

Pitfall to avoid Getting the notice wrong and invalidating your claim.

4. Prepare the claim properly

The county court has forms specifically for possession claims and can impose sanctions if they are not used. These include the standard claim form (N5), a claim form for accelerated possession proceedings (N5B), particulars of claim for rented residential premises (N119) and a certificate of service (N215). The particulars of claim should comply with Civil Procedure Rules 16 and 55 which relate to statements of case and possession cases respectively. Generally, they should enable the occupier to understand the claim, identify any statutory grounds for possession, attach relevant documents (see box: What will the court need to issue the claim?) and disclose pertinent information about the occupier’s circumstances and efforts to avoid litigation. If the court forms contain too little space, it is usual to attach an addendum.

Pitfall to avoid Having to amend the claim to rectify use of the wrong form or a failure to include relevant information.

5. Issue in the right court

The claim should be issued in the county court for the district in which the property in question is located. That usually means taking or sending the necessary papers to the court office, although some possession claims based on rent arrears can be issued online. Issuing in the wrong court can be costly, as the court may strike out the claim or impose costs sanctions.

Pitfall to avoid Issuing in the wrong court and having your claim dismissed and/or costs refused.

6. The first court hearing

When the court issues the claim, it will fix a date for the first hearing. All relevant paperwork should be taken to the first hearing to avoid unnecessary adjournments.

Pitfall to avoid Forgetting your paperwork and incurring the cost of an adjournment.

Preparing properly for any claim is one of the keys to successful litigation and getting it wrong can be costly. If in any doubt, consult a solicitor.

Dean Underwood is a barrister at Hardwicke
dean.underwood@hardwicke.co.uk

Have your say

You must sign in to make a comment