What happens when possession proceedings go wrong?

In my recent post on the five fatal mistakes made by landlords in possession proceedings, I talk about how you can prevent problems with your eviction case, but I did not go into a lot of detail about the things that can go wrong.

So let’s talk about this today.

First of all, let’s set this in context.

Lost rent

You are the landlord of a property and need to recover possession from your tenant. The normal reason for this is that your tenants are not paying rent.

So for example if their rent is £1,000 per month, every month they remain at the property you lose £1,000.

Technically you will have a claim against them for this money but in practice, few tenants evicted for rent arrears ever pay this. If they had the money they would have paid their rent.

So the longer they are in the property the more you are out of pocket.  You need to crack on with your eviction, therefore.

Court delays

The other thing to point out is that the courts are massively underfunded. It’s like the NHS but the courts get less sympathy.

Funding issues affect the availability of Judges to deal with paperwork and hear cases, and the number and training of the court clerks who deal with the paperwork and administration. So the only thing that is certain with non-urgent work is that it will take a long time, and that if anything goes wrong it will take a lot longer.

Possession hearings are generally listed all together on special days where the court will deal with upwards of 50 or so eviction cases one after the other. You want your case to be dealt with and your possession order to be made on this day.

If there are issues which involve the Judge looking at complex paperwork and making decisions he is not going to have time. So what normally happens is that the case is adjourned to a longer hearing.

Inexperienced litigators will generally agree to this, for example when the Judge says ‘I’m going to adjourn this to the first open date after 3 weeks’. You will think ‘three weeks is not long, I can wait for that’.

However, when the case is actually listed it is much more likely to be listed three MONTHS in the future, not three weeks. Because of lack of Judge time to hear cases.

Look at it this way – say you are a court listing clerk and there is only time to list one of two cases. One of them is a contested rent arrears possession claim and the other is a family case where children’s lives are at risk. I think you know which case they will choose.

What you don’t want

Most possession hearings are not quick but they chug along on the possession claims conveyor belt quite nicely. However, if anything springs up which changes this, for example

• If the tenant puts in a defence which the Judge decides needs to be considered separately
• If there is an error with your paperwork which needs to be sorted, or
• If anything crops up at the hearing which the Judge decides he does not have time to hear with on the day

Then the case will be adjourned, meaning massive delays and cost.

• The case will take many months longer to resolve, and
• You will probably not get any rent during that time!

How to avoid adjournments and delays

There are some things you can do to help yourself:

Before you issue proceedings

• ALWAYS use a mandatory ground for possession
• Deal with any potential problems before you issue eviction proceedings, and
• Make sure your paperwork is perfect

This will greatly minimise the chance of your case being delayed.

Employ an advocate to represent you at the hearing

They will be able to help you if something unexpected crops up at the hearing – and they may be able to prevent an adjournment. Good advocates are worth their weight in gold.

Note that Landlord Law members get access to our advocacy service and can book an advocate for standard possession hearings at a cost of £144.

Don’t do anything yourself to cause any delay

• If the case is listed when you are on holiday – change your holiday, not the court hearing date.  It will probably work out cheaper.
• Take care to arrive at court on time, and
• Ensure that enough money is put into the parking meter

You don’t want to risk you case coming on and being decided against you while you are out at the car park feeding the meter

If you lose

Finally, if you are not careful with your possession claim and don’t follow the proper procedure, or if you make a mistake, or maybe if you use a discretionary ground for possession where the Judge does not consider the circumstances warrant an order evicting the tenant – you could lose the case.

If you do, and if your tenant has incurred any legal costs – for example if they have obtained legal aid to defend the case – you will almost certainly find the Judge making an order that you pay those costs.

If the case turns into a full blown trial with both sides using barristers this could prove VERY expensive for you indeed.  You will end up paying not only your own costs but most of your tenant’s costs too.

Not something you want to risk.

In conclusion

Knowing what you are doing and preparing properly for eviction proceedings are critical.  You should only ever issue proceedings in circumstances where even if you do lose the case, no order for costs can be made against you – for example if your tenant was in serious arrears of rent at the time you issued proceedings but has since paid them off.

You also want to be super, super careful that there is nothing unusual or controversial about your case which might make the Judge want to adjourn it.

If you can’t spare the time to do the background research on bringing eviction proceedings, use a decent solicitors firm who understand eviction work. (See here for some suggestions and fees).

Or use our Eviction Guide.

And finally – when you hear stories from landlords about how their eviction proceedings took an exceptionally long time and cost a fortune – this is normally either because they used discretionary grounds or because of an error in the paperwork which took the case out of the normal course.  Make sure this does not happen to your case!