A new pre-action protocol for possession claims came into force on 6 April 2015 and replaces the previous pre-action protocol for possession claims based on rent arrears. It also extends to cover mandatory possession claims of all types – but the unclear drafting of the protocol does leave some confusion.

Our friends at Antony Collins have shared the following information:

Now is the time to review procedures re the necessary pre-action steps that need to be taken prior to issuing possession proceedings.

A new prescribed form for Notices Seeking Possession for assured tenancies was also introduced on 6 April 2015 (which reflects the new ASB changes). Do note however it needs to be used in any kind of assured tenancy possession claim including rent arrears cases.

Rent Arrears Claims

The protocol in relation to possession proceedings brought on the basis of rent arrears remains much the same. However there is now a requirement upon social landlords to send a copy of the pre-action protocol (PAP) to a tenant after the service of a Notice of Seeking Possession but before issue of proceedings.

There is also a rather hopeful plea to consider alternative methods of dealing with issues other than through court proceedings.

In addition to registered providers informing their tenants of the date and time of any Court hearing and the Order that will be sought at that hearing, an up to date rent statement must also be sent. This should be built into any pre-court letters that are sent to tenants. Rent accounts must still be sent to tenants every 13 weeks.

The same sanctions apply for non-compliance with the PAP and these include:

  • the making of an Order for costs against the registered provider and,
  • in perhaps more severe cases, Orders to adjourn, strike out or dismiss claims in their entirety.

It is therefore very important for the PAP to be considered again in its entirety against your processes. Best practice would be to have a checklist completed on an ongoing basis and finalised prior to the first possession hearing which can confirm that all of the PAP requirements have been complied with. This checklist could contain a Statement of Truth to be signed off by the officer presenting the case to the Court and could form evidence for the Court should the particular Judge require this information. This would also form a handy guide or prompt to the officer presenting the case in Court.

Possession claims other than for rent arrears

The biggest change is that the PAP now appears to apply to any possession claim issued through the County Court where the Judge has no discretion but to give a Possession Order – i.e. mandatory Possession Orders.  This, however, is where the confusion in the drafting of the PAP begins!

The new requirements for these types of possession claims are contained in Part 3 of the new PAP.  At paragraph 3.1 it gives examples of cases where the PAP is to apply and quotes the following “non-secure tenancies, unlawful occupiers, succession claims and severing joint tenancies”. This seems pretty clear but if the introductory paragraphs in Part 1 of the PAP,  specifically state it will not apply “to claims for possession where there is no security of tenure”. There appears to be a contradiction here between Parts 1 and 3.

Further confusion arises in Part 1 where it states that the new Part 3 requirements will not apply if possession is sought solely on mandatory grounds. This would imply that if a Notice Seeking Possession were issued in relation to an assured tenancy on the basis of the new mandatory ASB Ground alone then the Part 3 requirements would notneed to be considered. However, if Grounds 12 (breach of tenancy) and Ground 14 (ASB) were also included it would apply.

The situation above would seem to defeat the purpose of the PAP which appears to be to pre-empt or force proportionality arguments to be raised by Defendants at an early stage and considered by the landlord before issue. If they are then raised in Court, the necessary evidence will be available and ready before the Judge. A summary (i.e. without a long trial or directions timetable) hearing of any potential defence can then take place enabling it to be struck out at an early stage/first hearing if it is not “seriously arguable”.

Anthony Collins Solicitors have sought clarification from the body that drafted the new PAP, the Civil Procedure Rules Committee, and we are awaiting a response.

In the meantime, we suggest that the new Part 3 requirements set out below should be observed for any claim where the Judge has no discretion and must make a Possession Order. It is likely that in matters where a mandatory Possession Order is sought tenant’s solicitors are likely to raise compliance with the PAP and failure to comply may well lead to claims being adjourned or struck out.

The new requirements of the PAP for these types of cases are therefore summarised below:

  1.  Prior to issue, the landlord should write to the tenant/occupier explaining why possession is sought. A request must be made of the occupants to supply in writing within a specified time any personal circumstances or matters which they wish to be taken into account. This letter can be served at the same time as the legal notice.
  2. Any written representations received must be considered and a further decision taken as to whether to proceed with a claim for possession. Where a claim for possession is to be issued, brief written reasons for doing so must be given to the occupants. We suggest you consider using a written internal proportionality assessment document – we prepared one with the SLCNG and are happy to provide the template on request which you could adapt – contact Katey.slaughter@anthonycollins.com for a copy.
  3. The particulars of claim or any witness statement/schedule filed in the proceedings, should summarise:
    • whether the occupant has been given the opportunity to make the written representations set out above,
    • the representations made, if any
    • brief reasons for bringing proceedings and exhibit copies of the relevant documents should the landlord wish the court to consider these.

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