Eviction claims and landlords
I was prompted to do this post by a question we had recently where the questioner, a landlord, asked about how he could go about recovering the costs of evicting his tenant.
There is sometimes among some landlords a view that if they are put to any bother or expense in connection with their properties, then the tenant should pay for it. Although there are some situations where this may be possible, costs of eviction proceedings is not one of these. In most cases you will have to bear these as part of the expenses of being a landlord.
You can’t get blood out of a stone
One reason is a practical one. Probably the majority of evictions come about because the tenants cannot pay their rent. Here the landlord is generally advised to evict as quickly as possible to prevent the arrears accruing too much. In my experience the landlord is lucky if he can get any of his rent back, let alone legal costs, and most don’t even try. They just put it down to experience and try to be more careful with their choice of tenant in future.
I have only known a handful of cases where landlords have recovered costs. Mostly these are either where the tenant was worried about his credit record, or where he wanted to stay at the property and the landlord would only allow this if all outstanding rent and expenses were paid.
Costs in court cases
But what costs are these? Is it the actual expense to the landlord? In the vast majority of cases no. It will be the costs awarded by the court.
It is part of our justice system that the losing party in litigation is ordered to pay the legal costs of the winner (although this is always in the discretion of the Judge). In large and complex cases the procedure for deciding how much these are, is sometimes almost as complex as the case itself. There is a whole profession of law of costs draftsmen whose job it is to draw up the bills of costs and attend court hearings on behalf of parties.
In simpler cases there are tables of ‘fixed costs’ which are awarded in standard claims, and these are generally all that the winner is entitled to get back from the losing party, however much he may actually have paid his own solicitor.
In ‘small claims’ matters the rule is often that the winning party is not entiteld to costs at all (apart form court fees). Standard possession claim generally only get ‘fixed costs’ which are normally in the region of £2-300.
Most advocates at court hearings will regard it as a matter of professional pride to get as high a costs order as they can for their client. However in the vast majority of cases this sum is never actually paid, and the landlord is out of pocket.
Best practice
This is one reason why the most straightforward repossession procedure possible should be used, to minimise costs, and only solicitors who offer fixed fees used. Or if landlords really want to save money, they can use my do it yourself kit.
This post is one of a three part series on financial recoveries in eviction proceedings.
NB Read about the Landlord Law Eviction Service.
Dear Tessa
One point I would like to make here is that if there is a well drafted clause in a tenancy agreement that allows the Londlord to recover costs from his tenant in the event of the tenant’s breach, the Court is likely to order the Tenant to pay the Landlord’s full legal costs, rather than the fixed costs. Whether the Landlord will ever get any money despite the order depends on the tenant’s circumstances.
A costs order is also effective as a County Coiurt Judgment. But it will not be registered againt the Tenant on the CCJ Register unless the Landlord takes an active step to enforce it
Simon
Thanks Simon, yes I should have mentioned the CCJ Register point.
My experience is that Judges are hostile towards making any costs orders other than the fixed costs.
In fact I thought that there was a rule change a while back that said you could only claim fixed costs in undefended possession claims but have not been able to track it down in the CPR. Can anyone help?
As far as I know there’s never been fixed costs on a defended claim – certainly CPR.1 45 has been the same as long as I can remember. Fixed costs only apply for accelerated possession proceedings, demotions or where rent arrears is one of the grounds.
Here “defended” means substantively defended, not just asked to pay of course.
NB: there’s never likely to be small claims costs on a possession claim. Its unusual in that even if allocated to the small claims track, small claims costs rules do not apply.