Ben Reeve Lewis considers the judicial process …
Let’s face it, the possession procedure is not as user-friendly as it’s cracked up to be.
Many landlords spend time and money playing snakes and ladders with the process only to find themselves on the verge of obtaining possession before sliding all the way back to the start because of a technical hitch that could merely arise from a tick placed in the wrong box on a court form.
But what about the situations where a possession order was granted when it shouldn’t have been?
Possession order mistakes happen
We tend to trust the courts and why wouldn’t we? They are of course staffed by experienced judges dealing with these matters while we, the hoi polio merely do our best with the paperwork but courts can and do get the process wrong on many occasions.
You only have to look at the size of the ‘Housing Caselaw Handbook” with its mammoth 10,000+ high court cases that often overturned county court decisions to realise that things judges may not be as clued up as you think.
For my part, I have spent my life defending possession proceedings and dealing the homelessness fallout when the process breaks down so I see what goes on from a different angle.
Not for the first time I have this week become embroiled in a case where the courts have granted possession under the accelerated possession process following the landlord serving a section 21 notice upon the tenant – when the possession order should never have been granted in the first place.
The rules
As you landlords should all know (and if you don’t you have some expensive lessons ahead of you) a section 21 notice can only be validly served if you have protected the deposit. In addition, a landlord operating a licensable HMO that doesn’t have a licence cannot serve a valid s21 notice.
Also, a section 21 notice is used for assured shorthold or periodic tenancies only, it can’t be used for other occupancy types.
So why do we in my profession see so many possession orders issued where the courts were completely off the mark granting one?
Things that go wrong
Whilst examining the paperwork leading up to possession we so often see possession orders issued with no evidence provided that the deposit has been protected at all, let alone the prescribed information served.
It isn’t just the county courts either. If you have been following the debacle of High Court warrants granted following county court possession orders you will know what I mean.
Without getting into technical detail the bailiff companies were using forms that only applied to trespassers, not tenants. The Senior Master had to release new guidance in March insisting that warrants are to be signed off by high court judges, not their listings offices, to ensure that the rules and protocols are being complied with.
The High Court itself was in technical error for many years and people lost their homes as a result who in some cases didn’t have to.
Another error we see is where the landlord has obtained possession on section 21 where the tenancy is actually a protected tenancy which began before the 15th of January 1989. What happens in these scenarios is that the landlord, usually a replacement to the original issued an AST at some point since the tenancy began and the judge rubber stamping the possession order doesn’t ascertain when the tenancy started and simply relies on the tenancy agreement attached to the application form.
An astonishing Judge error
I was recently involved in a case where the possession order was granted but the property was an unlicensed House in Multiple Occupation, which should be sufficient to block the s21.
Acting on advice given, the tenant, in this case, had the confidence to apply to have the possession order set aside for this reason. In the hearing evidence was produced from the local authority confirming that it was indeed an unlicensed HMO but the judge, somewhat astonishingly refused to accept that this was a legal requirement.
What do you do in the face of such wilful ignorance from a judge?
Of course, the tenant can appeal but by this time he’s had enough of judicial processes and doesn’t want to put himself through the bruising experience again so he is just moving on, his faith in justice destroyed.
How does it happen?
So I wonder, as someone who has never witnessed the process, how judges issue possession orders in accelerated cases? Do they have a pile of them on their desk and simply rubber stamp them without checking the relevant details?
Given the amount of applications it wouldn’t surprise me if they deal with several hundred a week in some courts so quality control is bound to slip.
Completely unacceptable
If the High Court has fallen into bad practices then it stands to reason the county courts can as well but we are in a parlous state when experienced judges don’t pick up crucial factors like the security of tenure not being as claimed (a question that is on the defence form) or whether or not the landlord has protected the deposit or served the prescribed information or indeed any of the 9 or 10 other things that can invalidate a section 21 notice since the advent of the Deregulation Act 2015.
The all too true adage ‘We all make mistakes’ should not be applied here. It is completely unacceptable that legal professionals in their position should be making the kinds of mistakes they are.
And finally – the real reason why Judges keep getting it wrong now …
.@TessaShepperson Back in pre-Austerity times the MoJ would take a bulk purchase of our Defending Possession Proceedings book for DJs.
— Legal Action Group (@LegalActionGrp) May 24, 2016
Equally, there seems to be a fair number of cases where judges refused to grant a possession order where the s.21 notice and procedure were perfectly valid.
The main problem is that most District Judges (who are the ones who decide the cases) are not housing lawyers. For example, they could be former family or personal injury lawyers. However, once they are appointed as a DJ they are then expected to preside over housing cases often with little training.
This is one reason why a specialist housing court, with Judges who understand housing law, would be a good idea.
Last week I was in the City of London Mayor’s court at the Guildhall on a homelessness appeal and it was clear from the get go that the judge was not experienced in that area. Additionally the case was transferred from another court at 4pm the day before and he had only just received the case file half an hour before the hearing and had to keep nipping into the back room to read bits of it.
As you say Tessa a housing court is what is needed and mooted I understand, government making noises that way
I would urge all private tenants to learn what makes for a valid possession notice and – if they can face it – challenge unfit notices in court. In the event of error, you will not be liable for court costs. Or, alternatively, why not tell your landlord just as the notice is expiring that it’s not even valid. He/she will have to start over again (and this buys you more time).
Would it be be better if two housing lawyers employed by the court independently looked at each case (accelerated cases), and only if they come to a different outcome have a judge look at it? The lawyers could use a published check list.
I see the reason why a case can’t be decided within days of the court having all the paperwork, and way the courts could not then give landlords/tenants a few days to send in additional paperwork if there is missing deposit protection paperwork etc.
It is mostly landlords that lose out when judges get it wrong, as a tenant (assuming AST) will be evicted sooner or later if it is the landlord’s will to do so. Maybe after the return of a deposit etc, or another tenant is removed from a HMO, to make it under 5 tenants.
A tenant that gains a few more months in a property has not gained stable housing and is not much better of then a tenant that is evicted quickly.
Ian I get where you are coming from but it isnt merely a case of postponing the inevitable these days.
Council homelessness units quite rightly get accused of gatekeeping, a version of which has traditionally been postponing the inevitable to keep the homelessness statistics down and thus keep politicians in jobs. In practice gatekeeping has always been silently approved of by said politicians as long as it makes them look good….but that is another matter.
In order to fulfill their homelessness prevention function many councils now have teams who look to use public funds to clear rent arrears and save a person’s home.
Many landlords as you know, use s21 where there are arrears in order to avoid using the Battle of the Somme that IS a S8 claim Tenants in difficulty often only approach the council for help at the last minute but prevention strategies can help retain a home and keep the landlord happy.
Rehousing a homeless family can cost in the region of £15 – £18,000 so clearing arrears of say £2k is a cost effective alternative and I’m not talking about using public funds to cover feckless behaviour, many arrears come about because of benefit caps, housing benefit delays and other matters beyond the tenant’s control.
Rent arrears arent always the faulty of the tenant and if the council can intervene and save the day, as more are having to do in order to deal with the homelessness crisis then we dont need courts issuing possession orders like confetti when there are alternatives that suit all parties
Ben,
The issue I have is if I have gone to the pain of taking court action, I will not risk keeping the tenant long term regardless of the arrears being paid. (A tenant that will not take responsibility is not worth having.)
If it was possible for the landlord to inform the homelessness unit at the time of issuing the S21 (or S8) notice and the homelessness unit then investigated and took action within days, then keeping the tenant may be an option. Just having the homeless unit investigate every eviction case as soon as the paperwork is sent to the court, and then being willing to work with the landlord, including paying ALL the landlords legal costs could help.
If the housing benefit staff understood that their primary job was to keep landlords happy, then a lot of these problems would not happen…..
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I wish all notices had to be issue var the court, with a copy going to the homeless unit, and a small charge for the landlord. Then there would be no problems with tenants claiming the landlord did not give them the notice, and the homeless unit would get a chance to take action before it is too late.
Thanks for writing this piece Ben. And it’s a good comment you make, in response to Ian. The ever-precarious labour market is doing nothing to help people avoid arrears and / or keep their homes either! Landlords who make their money from the labour of others wd do well to remember this.
Ben – do you think you might correct the glaring typo in the header of this piece? And the others in the article too? Only, my eyes are really itching.
I’m afraid it’s me that does all the loading up and such so heading errors are my fault, not Bens. Thanks for pointing it out – now corrected.
The trouble is that after testing about ten headings your eyes tend to slide over things and you just don’t see the errors any more. I have Grammarly for the content now though which picks up a lot.
‘Rehousing a homeless family can cost in the region of £15 – £18,000 so clearing arrears of say £2k is a cost effective alternative’
It would be a lot more cost effective if councils worked with landlords in the first place.
Wow, so many points raised my answer is another article entirely.
The job of the homelessness unit and the housing benefit team is not and never will be keeping a landlord happy.
Their job is processing claims of the homeless and benefit applicants.
Landlords, not to put too fine a point on it are service providers. In terms of homelessness all of their work is governed by Part VII of the Housing Act 1996 and for Housing Benefit claims they are under the Housing Benefit regulations and sit in the umbrella of the council’s finance directorate, by which I mean to emphasise housing benefit claims have nothing whatsoever to do with housing issues.
Should this be different? Yes I agree 100%.
Homelessness should be de-legalised, I mean have the legal elements taken out so that councils can respond to real problems and not have to deal with the homelessness crisis, and by god I do mean a crisis, as a tick box exercise which helps nobody whatsoever.
Councils need landlords more than ever in housing history, I absolutely hate the fact that this is what it has come to but thats the way it is and council departments are not advancing their cause by behaving like ucontactable, faceless bean counters.
Under the Housing and Planning Act councils are being forced to sell off their housing stock to finance the roll out of the right to buy for housing associations. Social housing stock is under systemic attack by coked up, privileged cousins of the Queen.
Its a time for weeping. The logistics and practicalities of how it all works is becoming irrelevant in the face of a national disaster
And anecdote from a possession case.
s21 served and after 2 months claim for possession put in. Defence replies (in time) with evidence of s213 breaches & s21 invalid, and offers evidence, and ask that a hearing be held or claim struck.
Case is heard without a hearing and possession granted. Even better, the Possession order does not have any information about how to have the order varied or suspended.
Defence asks court what they can do and is told order contains an error (fair enough) and a new order will be sent out the next day.
Three days later… the exact same possession order as before is sent out, still without any note on how to make an application to vary or suspend. So now it’s well over a week since possession order made, and defence has no idea how long they have (or indeed if they can) to apply to set aside and the claimant faces issues in seeking possession that are not in any way of their own making.
This Sucks for defence, and also sucks for the claimant who presumably assumes does not know that order can be applied to be set aside, and sucks for the poor officers of the court who are going to have to deal with both.