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.
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.
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