The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The Court of Appeal confirmed in Cardiff CC v Lee (Flowers) that an application for permission to issue a warrant must be made before a warrant request is made. The Judgment can be found by clicking here.
As many landlords will be aware, once an SPO has been obtained on breach of tenancy or anti-social behaviour terms, unless the order expressly states that an application to prove the breach must take place, landlords simply routinely complete the N325 Warrant of Possession Application form when the terms have been breached. It is only if the tenant applies to suspend the warrant that a hearing has taken place, which may be adjourned for a 1 or 2 hour late hearing to hear evidence on the breaches of the possession order.
This Cardiff appeal revolved around provisions of the Civil Procedure Rules (CPR) and in particular CPR 83.2: click here.
The facts were that the secure tenant had an SPO made against him based on breach of tenancy and nuisance and annoyance. The order was suspended for 2 years on compliance with the provisions of his tenancy agreement. There were later 3 months of alleged breaches and the Council warned the tenant that it intended to seek a warrant of possession. The Council applied for a warrant using the N325 form. An eviction date was fixed and the tenant applied to suspend the warrant. The application was dismissed after hearing evidence and finding that the tenant had breached his tenancy terms. The tenant then appealed. The appeal to a Circuit Judge was dismissed.
On appeal to the Court of Appeal, Cardiff CC conceded that CPR 83.2(3)(e) did apply and that an application for permission should have been made first. Cardiff confirmed it had changed its systems so that applications for permission would be made prior to a warrant request in future.
As a warrant suspension hearing had already taken place and the Judge had already heard evidence, there had been no prejudice to the tenant and therefore there would be no point in requiring Cardiff CC to correct the defect in procedure by applying now for permission. A hearing of the evidence had already taken place in any event.
The Court relied on CPR 3.10 which gives the Court the power to make an order to remedy any error of procedure, such as a failure to comply with a Rule or Practice Direction. CPR 3.10 can be found by clicking here.
However, generally applications for permission must be made before applying for a warrant. Note paragraphs 30 and 31 of the judgment: “I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future. We also hope that the CPR Committee will consider whether any amendment can be made to form N325 to make it clear that there are cases in which permission must be sought first”.
- If social landlords have already applied for warrants on SPOs based on breaches of tenancy or ASB and a warrant suspension application has already been made prior to this Judgment being issued, then just use the same argument that was made in this case. Expressly ask for permission at the hearing for the Court to exercise its powers under CPR 3.10 to remedy the landlord’s error in not applying for permission to enforce the order first under CPR 83.2.
- If landlords however are about to apply for a warrant and fail to make a permission application first now that this Judgment has been handed down, then they are warned to expect little sympathy from the Court.
- Court office staff may well have been notified of this case, and some warrant applications may be returned. However Court office staff are not legally trained and it is not their job to spot when applications are defective.
- For all future SPOs suspended on tenancy/ASB terms which are breached, N244 applications for permission need to be made first, presumably asking for a hearing to prove the breach of the SPO and for permission. Only when that hearing has taken place and permission been granted, can a warrant be requested.
- This new procedure will provide protection to tenants who did not apply for a warrant of suspension hearing, and ensure that they are not evicted without the breach being proven first. It will however also increase delay and cost to the landlord. It will also be interesting to see if the court can cope with the extra hearings.
- Landlords should consider including clauses in any SPOs in future which make clear that a permission hearing to prove the breach must be requested before a warrant can be applied for in any event.
- Note that if permission is granted, a warrant must be issued within 1 year of the permission order. Otherwise the permission order will cease to have any effect and a fresh application will need to be made (CPR 83.2(7A(b)) and (7B)).
For more information
Please contact Helen Tucker or any member of the Housing Litigation team on 0121 212 7400.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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