We all know, or those of us who do possession proceedings know, that only the landlord (the claimant) or his solicitor can sign the court paperwork for issuing a county court claim for possession. Claim forms being signed by letting agents is one of the top reasons why cases get chucked out by the court.
This is enshrined in the practice direction for CPR 22 (which is about statements of truth) section 3.11 which says under ‘Managing Agent’:
An agent who manages property or investments for the party cannot sign a statement of truth. It must be signed by the party or by the legal representative of the party.
But can an agent ever sign the paperwork? My original understanding used to be, no, there are no circumstances under which an agent can sign, even if he has power of attorney. Although I did not have any specific authority for this and the point bothered me.
I then had a discussion with a District Judge who rather specialises in possession claims. I asked him about this point, and he told me that persons with power of attorney *could* issue proceedings on behalf of the person they hold power or attorney for. “Otherwise” he said, “How could all those foreign landlords who live overseas, ever claim possession?”
The obvious answer is that they should use a solicitor. However I took the point, and changed my standard advice to indicate that it may be possible for someone holding power of attorney to issue proceedings.
Not having any reason to do so, I did not revisit this point until, on looking through the Housing Law Handbook in preparation for my review, I read at 6.20 (p308) that “It is clear that an agent cannot bring proceedings for a principal, even where there is a power of attorney”.
The author refers to the case of Gregory v. Turner 2003 and the Legal Services Act 2007 Part III. The case gives a fairly detailed analysis (para 65 onwards).
It does seem therefore that those with power of attorney, do not have an automatic right to issue proceedings by virtue of their power of attorney (which I suspect will surprise many non lawyers). However it does look as if they can bring a case with leave of the court. Maybe this is what my friend the DJ was referring to.
Do you know of any cases where the Judge allowed proceedings to continue where the statement of truth had been signed by the claimants agent under a power of attorney? Is it necessary to specifically apply for leave first? What are the criteria under which a Court will grant such an application?
LikeRelated posts:
- Defences to possession proceedings – spurious and otherwise
- Four more cases on possession proceedings
- Letting agents going bust – three top tips for landlords to protect your position
- Time taken to get possession of a property through the courts – an example
- Rogue letting agents
Related posts brought to you by Yet Another Related Posts Plugin.
The Landlord Law Blog from Tessa Shepperson
surprise many lawyers too.
I train housing law for the CIH and this always raises issues when I teach possession proceedings to several housing associations who often act as agents for other organsiations. Having said that, nobody has ever reported being blocked under CPR22.
Working in tenancy relations I would always try and block a case on this basis where an agent is concerned but it is always with judges discretion as usual and so far I havent been successful.
No sure if power of attorney can be given to non lawyers under the Act. What’s your opinion?
Maybe there is a difference between the practice of Judges regarding claim forms signed by other housing associations acting as agents, and claim forms signed by private sector letting agents. I have been told by several DJs that claim forms signed by private sector agents will get rejected as a matter of course.
I don’t really have a view on the power of attorney issue, as I have never had a case on this point so have not researched it properly. I would like to know though!